United States: General Counsel Dishes Up Advice On 43 Charges, Including Google's Decision To Terminate An Employee For Harassment And A Union's Shadow Facebook Page

Seyfarth Synopsis: In some early spring cleaning, last week the NLRB's Office of General Counsel released 43 memos authored by its Division of Advice meant to provide guidance to regional offices on pending charges. Here are some of the highlights that employers should not miss.

Either the General Counsel's office has started spring cleaning a little early or it is working hard to clear its plate before spring break. Either way, last week its Division of Advice released 43 advice memoranda. The cache weighs in on a number of cogent issues, including Google's decision to fire an employee for suggesting that men are more suited for the tech industry than women, and the lawfulness of a union's shadow Facebook group meant to harass dissenting union members.

An arm of the General Counsel's office, the Division of Advice provides guidance to the regional offices on how to approach difficult or novel legal issues. The General Counsel has discretion to release the memos the Division prepares after cases are closed. Although they are not binding on the Board, the memos can provide insight into the General Counsel's priorities and approach to charges.

Here are a few highlights from last week's wave of releases.

Google Lawfully Discharged an Employee for Violating Its Anti-Harassment and Discrimination Policies

In a memorandum issued on January 16, 2018, the Division of Advice weighed-in on whether Google violated the NLRA when it terminated an employee for drafting and circulating a document containing a number of statements suggesting that men were more suited for the tech industry than women.

After attending a summit on Google's diversity programs, the employee authored a critique of the company's inclusion initiatives, which included statements attempting to rationalize the gender gap in the tech industry and at Google using gender stereotypes. The document also accused Google of not tolerating certain types of political views. The employee posted versions of the document on a couple of internal, company-sponsored discussion groups. A number of coworkers complained about the postings and, according to the advice memo, a few employment candidates withdrew from consideration due to the posts.

After an investigation, Google concluded that the employee violated Google's anti-harassment and discrimination policies, and discharged the employee. In explaining its rational to the employee, Google stated that it based the decision solely on the employee's comments regarding gender stereotypes. It was not based in any way on the employee's discussion of training programs or Google's treatment of differing political views. Google also sent a company-wide email echoing these points.

The Division of Advice acknowledged that much of the content of the employee's memorandum likely constituted protected, concerted activity (such as criticisms about Google's culture and training). Nevertheless, the discharge did not violate the Act. The memo noted that the Act does not protect conduct creating a hostile work environment, or constituting racial or sexual discrimination. The employee's comments about gender stereotypes constituted this type of unprotected conduct. The Division also concluded that Google only terminated the employee's employment for the unprotected conduct. The company's termination memo and company-wide email were enough to demonstrate that Google did not consider the protected portions of the employee's posts. Accordingly, the Division of Advice advised the region to dismiss the charge.

Employee Benefits PowerPoints Helped Create a Binding Contract Term

The Division of Advice concluded in a November 7, 2017 memo that a charge should issue against an employer for failing to bargain before rescinding an Employee Stock Purchase Plan (ESPP) for union members.

The memo concerns union employees at a chemical facility in Kentucky that employed both union and non-union workers. The ESPP was not an express term in the union's CBA. However, in late 2016, the employer gave a number of power point presentations to both union and non-union employees indicating that all employees were eligible for the benefit. The union and employer also discussed the ESPP on a few occasions, and the employer held it out to the union as a potential offset to its proposed health insurance premium increases. Nevertheless, shortly before opening enrollment to the ESPP, the employer notified the union that bargaining unit employees were not eligible for the benefit.

The Division of Advice concluded that the employer's "initial announcements of the ESPP to unit employees and reinforcing representations to [u]nion officials established a term and condition of employment." Although the employer rescinded the purported contract term before it was implemented, the Division concluded that the employer's statements alone had "established the ESPP as an employment term the unit employees reasonably expected."

Franchisor Not Liable for Social Media Policies Adopted By Franchisees

On September 21, 2017, the Division of Advice determined that Subway could not be liable for its Franchisees' use of a corporate social media policy Subway authored because Subway did not require the franchisees to adopt it.

Subway created the social media policy and made it available to its 26,000 franchisees through the company's internet portal. On a few occasions, the company encouraged the franchisees to use the policy, but the company never required them to adopt the policy.

Phoenix's Region 28 determined that the Subway policy was overly broad and discriminatory, and sought advice on whether it could hold Subway liable for the franchisees' violations. The Division did not consider the policy's legality ( for a summary of the Board's new, more moderate position on handbook provisions click here); it only considered whether a franchiser could be liable for its franchisees' use of the policy.

The Division noted that companies may be liable for other employers' violations of the Act if the company directs other employers with whom it has business dealings to engage in the unlawful conduct. Here, however, the Division concluded that it could not prove that Subway directed its franchisees to adopt the social media policy. Subway only recommend, encouraged, and asked the franchisees to consider adopting it. It did not track which franchisees had downloaded the policy, did not punish franchisees for not adopting the policy, and only a couple hundred franchisees actually adopted it. Accordingly, the Division recommended dismissing the charge against Subway, provided it was not first withdrawn.

Union's Shadow Facebook Group Violated the NLRA

A shadow Facebook group started by Teamsters Local 610 violated the NLRA, according to an advice memo issued on September 21, 2017.

The Facebook group was created by union leadership during contract negotiations in response to a union member's complaints about the composition of the union's bargaining team, and terms the team was negotiating for some union members. The union excluded the member and his supporters from the Facebook group. It also posted a number of derogatory statements directed at the member to the Facebook page.

The Division of Advice concluded that the union's Facebook group violated the Act for two reasons. First, the union created it to restrain and coerce dissenting members to refrain from exercising protected Section 7 activities. As the Division noted, although many of the comments may have been trivial and immature, they were "nonetheless deliberate and otherwise unprovoked acts made in direct response to the [members'] protected activity." Thus, they were meant to exclude, ostracize, and humiliate the members. The Facebook group also violated the Act because the union unlawfully denied the dissenting members access to the group based solely on their disagreement with the union. The Division equated this to restricting access to a union bulletin board, which violated employees' Section 8(b)(1)(A) rights.

As a remedy, the Division of Advice recommended requiring the union to (1) remove all offensive posts from the Facebook page; (2) pin a notice to the top of the page as a notice of improper conduct; and (3) invite all union members to join the Facebook group.

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