More NLRB Advice Memos – Social Media Activity and Scope of Contract Language


In the latest batch of Advice Memoranda from the National Labor Relations Board, the Office of General Counsel (OGC) offers further guidance to employers, both unionized and non-union. Advice Memoranda contain the recommendations of the OGC to the Board on specific issues. While several are years old and of limited interest, two more recent memos provide guidance on the issues of protected v. unprotected social media activity and scope of contract language.

Google Inc. (May 30, 2018). The OGC found that the employee was engaged in concerted activity that is protected by the National Labor Relations Act in posting comments on the employer’s internal social networking platform that questioned the scope of the employer’s antiharassment policies with regard to criticisms of workplace diversity and inclusion initiatives and that complained about bullying of politically conservative employees.

The OGC acknowledged that employers have a strong interest in promoting workplace diversity, and must be permitted to “nip in the bud” the kinds of conduct that could lead to a hostile environment, rather than waiting until one has been created before taking action. Thus, highly offensive comments about other employees and managers relating to protected personal characteristics may be unprotected even if they involve concerted activities regarding working conditions. In this case, however, the OGC found that the employee’s comments, which raised the free speech rights of employees skeptical of diversity and inclusion efforts, although “insensitive,” did not rise to that level of offensiveness and could not be reasonably believed to lead to a hostile work environment. Thus, these comments were protected under the Act.

Frazer & Jones Co. (January 15, 2020). The OGC applied the Board’s newly-adopted contract coverage test in MV Transportation, which we discussed in our September 2019 E-Update, to whether mandatory Saturday overtime was subject to bargaining. In MV Transportation, the Board overturned its prior “clear and unmistakable waiver” standard, instead adopting the “contract coverage” standard, under which an employer’s unilateral change will not violate the NLRA if the change was “within the compass or scope” of the language in the agreement granting the employer the right to act unilaterally. If, however, the agreement does not cover the employer’s disputed action, the employer will have violated the NLRA unless it establishes that the union waived its right to bargain over the change, or that the employer was privileged to act unilaterally for some other reason (e.g., economic exigency).

In the present case, the OGC found that the parties’ collective bargaining agreement provided specific language as to overtime practices and, therefore, gave the employer the right to unilaterally assign a certain amount of mandatory overtime each week. Thus, under MV Transportation, the employer’s conduct was within the scope of the CBA language and thereby lawful.