Board Strikes Down Non-Solicitation Policy and Finds that Employee Instant Messages About Job Security Are Protected Activity

In Food Services of America, Inc., 360 NLRB No. 123 (May 30, 2014), a Board panel majority (Hirozawa, Schiffer) struck down an employer’s solicitation policy and concluded that instant messages between two employees involving job security are protected concerted activity under the National Labor Relations Act.  

The employer’s solicitation policy provided that:

Solicitation discussions of a non-commercial nature, by Associates, are limited to the non-working hours of the solicitor as well as the person being solicited and in non-work areas. (Working hours do not include meal breaks or designated break periods). 

The Board majority concluded that the above policy unlawfully restricts Section 7 activity by prohibiting solicitation in work areas during non-work time, noting that “absent special circumstances not present here, employers may ban solicitation in working areas during working time but may not extend such bans to working areas during nonworking time.” 

The Board also ordered the reinstatement of an employee discharged for harassment, lying to an employee, and planning to entrap a supervisor.  The discharged employee traded instant messages with a coworker.  In those instant messages, the discharged employee said that their supervisor complained about the coworkers’s performance and wanted to fire her, that the coworker needed to ask Rubio for advice instead of communicating with the supervisor, and that the two employees should speak Spanish around the supervisor to provoke the supervisor to “say something stupid.” 

The Board panel disagreed with the ALJ, finding that employee conversations about job security are “inherently concerted,” that one employee’s warning to another about the latter’s job constitutes protected conduct, and that the instant messages were for the employees’ “mutual aid or protection.” The Board rejected the employer’s argument that the statements were unprotected because they were untrue, finding that they were not “maliciously untrue.”  The Board also rejected the employer’s harassment argument because the coworker, although distressed by the discharged employee’s comments, never asked her to stop making the comments.  Member Miscimarra disagreed with the Board majority’s findings, stating that the discharged employee’s actions were unprotected because she attempted to subvert her supervisor.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.