On April 22, 2014, National Labor Relations Board Administrative Law Judge David I. Goldman issued a decision in The Kroger Co. of Michigan, Case No. 07-CA-098566, which reinforces that employers, both unionized and non-, are increasingly being left without guidance as to what exactly will be deemed a violation of the National Labor Relations Act. This latest decision is in keeping with the Board’s attack on employers’ rules of conduct, as we already covered here. There is almost not a single day when the Board does not announce some new decision affirming the belief that it has run amok on at least this subject. Certainly the prevailing feeling is that the Board is fostering an atmosphere where the employee can do no wrong. The Kroger decision epitomizes this sentiment.
Kroger, a company that operates retail grocery stores, had a provision in its communications rules that required employees to use a disclaimer if they published about the company: “[I]f you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: ‘the postings on this site are my own and do not necessarily represent the postings, strategies or opinion of the Kroger Co. family of stores.’”
It should be pointed out that Kroger was following policy language approved by Acting General Counsel Solomon of the Board in his May 30, 2012 guidance memorandum. After what one might have hoped was the product of considerable thought and research, in this memorandum, the Acting General Counsel approved an employer rule that stated when posting on the Internet, an associate should make clear that his/her view did not represent those of the employer. The General Counsel’s office concluded, “It is best to include a disclaimer such as ‘The postings on this site are my own and do not necessarily reflect the view of [Employer].’” In explicating the postulated requirement that employees include such a disclaimer with their postings, the General Counsel’s office opined that this requirement “is not unlawful.” Indeed, the General Counsel’s office noted that the employer had a legitimate need for such a disclaimer and it would not unduly burden employees in the exercise of their Section 7 right to discuss working conditions. Counsel for management certainly believed that the sample policy and opinion of the General Counsel’s office could be relied upon in advising clients.
Notwithstanding the General Counsel’s position, Judge Goldman found that a rule requiring a disclaimer unduly burdened legitimate Section 7 communications, as it would likely chill employee willingness to engage in such. Judge Goldman gave no weight to the General Counsel’s memorandum. His words speak for themselves: “This conclusion amounts to an opinion from an office of the General Counsel and is without precedential value. Such memoranda have weight only to the extent that the reasoning is persuasive, and in my view it is not . . . .” Judge Goldman believed that Kroger’s rule was overbroad because it applied to all types of posted online communications, including those for example on Facebook, by identifiable employees about work-related information.
Lesson learned: There are no safe harbors, and if there is a possible way to parse a rule against an employer under the current regime, the Board will likely do so.