The National Labor Relations Board (NLRB) has put the kibosh on Costco’s employee social media policy.
Under Costco’s electronic posting policy, employees were specifically prohibited from posting any statements on social media which “damaged the Company, defamed any individual or damaged any person’s reputation.” This electronic posting policy was part of the Costco Employee Agreement. Employees who violated this rule could be subject to discipline, which included termination.
The United Food and Commercial Workers union, which represents grocery, retail, meat packing, and food processing workers, challenged the electronic posting policy, claiming it was an unfair labor practice that violated Section 7 of the National Labor Relations Act (NLRA). Under Section 7 employees have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection. It applies to a wide range of union and collective activities, and protects employees who take part in grievances, on-the-job protests, picketing, and strikes.
The administrative law judge (ALJ) held that Costco’s electronic posting policy did not violate Section 7 activity since Costco employees would reasonably infer that the purpose of the electronic posting rule was to create a “civil and decent workplace.” After the ALJ dismissed the complaint, Costco and the counsel for the NLRB’s General Counsel filed exceptions to the ALJ’s decision.
The NLRB held that Costco’s electronic posting was overbroad and violated Section 7 because it could reasonably tend to chill employees in the exercise of their Section 7 rights. Further, the NLRB distinguished the Costco electronic posting policy from the citations the ALJ relied on, holding that those citations lawfully prohibited communications and conduct that fall outside the protection of Section 7, such as sexual harassment, sabotage and other unlawful, abusive and malicious activity.
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