Last week I attended the ABA Section of Labor & Employment Law National Symposium on Technology in Chicago. Since Labor & Employment law is a focus here at ROSS, I was particularly interested in a panel discussion on the evolving technology-related jurisprudence of the Trump-era National Labor Relations Board.
It also struck me that the evolving law in this area was a good test of ROSS’s natural language search capabilities. As it turned out, it took me about five minutes to uncover a line of decisions demonstrating that the evolution of precedent under the Trump Board may not be as dramatic as some commentators suggest. My research, outlined below, would have taken hours on Westlaw or Lexis.
During the Obama administration, the NLRB issued a host of decisions that expanded the Board’s existing precedents on workplace rules to expressly include rules governing social media. A number of commentators have fretted that the Trump Board has already moved decisively to limit its technology-oriented precedents and transform the Board’s underlying jurisprudence. However, analysis of a few recent cases related to social media reveal that the NLRB’s changing jurisprudence may not be as dramatic as many practitioners think.
One of the Trump Board’s most-discussed changes to NLRB precedent was its 3-2 decision in The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, 365 NLRB No. 154 (2017) In Boeing, the Board overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which had established the standard governing whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfered with the exercise of rights protected by the National Labor Relations Act.
Under the prior Lutheran Heritage standard, employers violated the NLRA by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights. The Lutheran Heritage standard set a “clear as mud” rule that turned largely on the subjective reasonable understanding of the employee.
In place of the Lutheran Heritage “reasonably construe” standard, the Boeing Board established a new test when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights. In those cases, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.
The Board also announced that, prospectively, three categories of rules would be delineated to provide greater clarity and certainty to employees, employers, and unions.
Given the changes, I wondered how the Boeing test had been applied by the NLRB to workplace rules governing employee use of social media, and whether the new test was changing the way those cases were decided. After more than 20 years of using contorted boolean queries to search cases that appeared in essentially random order in search results, I was interested in how ROSS would identify and organize the line of relevant social media cases since Boeing. To begin my research, I set the ROSS NLRB filter and used a simple query: “How has the NLRB applied the Boeing test to social media since 2017?”
The first result of my search was a particularly relevant unpublished ALJ decision, United States Postal Service and Richard Santiago, (NLRB Case No. 28-CA-175106, March 9, 2018). In that case the ALJ engaged in a detailed analysis of Boeing and applied the Boeing standard to evaluate Postal Service rules governing employees’ official use of social media to communicate with the public or Postal Service employees. The ALJ upheld the Postal Service rule, finding that an employee’s reasonable understanding was still relevant under the first prong of the Boeing test. From that premise, the ALJ found “it highly unlikely that the rule, even to the extent it references ‘personnel matters,’ would operate to impede upon protected Section 7 conduct, or that it would be reasonably construed to do so. Put differently, I find the chance that a reasonable employee would understand this rule to bar them from discussing terms and conditions of employment (i.e., ‘personnel issues’) via their personal social media accounts to be ‘comparatively slight’ if not nonexistent.”
In another relevant unpublished decision that was highly ranked by ROSS, the ALJ applied Boeing to invalidate workplace rules that prohibited “chatting”, “utilizing Facebook and other social networking sites, ” and “blogging”. Motor City Pawn Brokers et al and Terrence Walker et al. (NLRB Case No. 07-CA-179458, October 22, 2018). The ALJ found that although the social media rules were facially neutral, “as written, and in context” the rules were overly broad and had a tendency to chill Section 7 rights. From that premise, the ALJ held that “[c]ommunication with other employees and the public about terms and conditions of employment is a core Section 7 right. The Respondent's general assertions regarding its interest in protecting information or controlling its image are insufficient to establish a justification that would outweigh the potential interference with these protected rights. Therefore, applying the Boeing balancing test, I find that these rules violate Section 8(a)(1).”
ROSS also included in the Boeing line of cases an interesting decision invalidating a rule that prevented employees from using social media to send messages that are “offensive or embarrassing to the Company.” SOS International, LLC v. Pacific Media Workers Guild Communications Workers of America, Local 39521 (NLRB Case No. 21-CA-178096, March 12, 2018). In SOS, the ALJ determined that “[b]ecause the rule prevented employees from using social media to discuss any information about company business, regardless of the tone of such discussions, and without any exception for Section 7-protected topics such as wages,” the rule fell within the Boeing categories of prohibited rules and was unlawful.
These cases and others illustrate that the NRLB is still struggling over the role of employees’ “reasonable construction” of work rules in Section 7 cases after Boeing. Although the Board’s intent in Boeing was to limit the relevance of the subjective understanding of the employee to the analysis, the “nature and extent of the potential impact on NLRA rights” prong of the Boeing test still appears to turn on the employees’ view of how a rule might chill their rights. It will be interesting to see whether the reasonable construction test continues to play a significant role in the post-Boeing analysis.
However the substantive law on this topic develops, the results of my five-minute search illustrate how ROSS is changing the practice of law. We’ve written a lot about how ROSS’s ranking and retrieval algorithms work to return more relevant cases instantly. But the value of the technology is demonstrated by the depth and quality of the research I was able to complete in a fraction of the time it would have taken on other platforms. My results illustrate how ROSS delivers better results faster than legacy platforms in the context of the NLRB’s Boeing decision and in any changing legal environment.
Charlie von Simson is a legal subject matter expert at ROSS. He practiced law for twenty years before running away to join a startup.