Facebooking Misappropriated Employer Form Is Not Protected Activity

By Chance Hill

On June 11, 2018, the National Labor Relations Board (Board) Division of Advice applied the Board’s new Boeing standard for assessing employer policies.  The Division advised that an employer did not violate the NLRA when it discharged a pro-union employee who Facebooked a form that was “improperly taken” from a team leader’s desk.  Kumho Tires, 10-CA-208153 (July 13, 2018) 

The employer was in the middle of a union-organizing drive and had been fighting rumors that it paid managers bonuses to fight the union. One employee took a bonus-request form from a team leader’s desk. The form seemed to be asking for a bonus for the team leader’s anti-union efforts. The employee gave a copy of the form to a second union supporter. The second union supporter posted the form to a private, union supporting Facebook group. The employer discharged the second union supporter for violating the employer’s social media policy.

Under the recent Boeing standard, if the rule is not even reasonably interpreted as restricting NLRA rights, the rule is lawful. Here, the work rule ordered “Maintain the confidentiality of the Company’s trade secrets and private or confidential information,” and it called out “internal reports, policies, procedures, or other internal business-related confidential communications” as well as trade secrets. The Division advised that the work rule was lawful because it did not explicitly refer to employees, their terms and conditions of employment, or any other NLRA-covered communications. The Division also advised that, although the Facebooker was engaged in protected concerted activity, he forfeited that protection. Posting the documents was “such disloyalty” that it fell outside the NLRA’s protection. The union supporter knew that the form had been wrongly procured.

Note: Reason is enjoying a revival at the Board.  But note also: If the employees had only repeated the information readily viewable on the Team Leader’s compensation form, and had not copied it, all their discussion about the form – including that the employer was paying bonuses and, besides, that the employer was rolling in cash and could afford to increase wages – would have been protected under the NLRA.  Try to put confidential information away.

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