NLRB Strikes Down Employer’s “No-Button” Rule

Kollman & Saucier
Kollman & Saucier

Another day, another employer policy that violates employees’ Section 7 rights. In this case, Boch Imports, Inc. and International Association of Machinists & Aerospace Workers, case 01-CA-083551, the Board was asked to review an employer’s social media policy and prohibition against certain clothing and pins. Not surprisingly, the Board found these actions impermissibly restrained employees’ rights to discuss the terms and conditions of their employment.

In Boch, the employer previously maintained a social media policy that required employees to identify themselves when posting about the employer and also prohibited employees from using the company’s logo. Followers of social media decisions from the NLRB know that these policies are illegal because these prohibitions could cover postings about employees’ terms and conditions of employment, and the Board found them as such. Similarly, prohibiting employees from utilizing the employer’s logo has also been found illegal in the past. This result should not come as a surprise.

Of interest in Boch was the company’s prohibition against wearing “pins, insignias, or other message clothing.” The administrative law judge found the prohibition against insignias and message clothing overly broad in that it could prohibit protected communications, but agreed with the employer as to the prohibition against wearing pins. Boch had argued that because some of its employees worked in and around vehicles and vehicle engines, the possibility that a pin may fall into and damage an engine or vehicle constituted special circumstances justifying the prohibition.

The Board, however, disagreed and ruled that the company’s justifications for prohibiting pins were overbroad and not narrowly drawn. Specifically, the Board noted that the company did not present evidence of any such accidents related to the pins and that the company’s handbook did not link the prohibition to safety issues. Based on the facts before it, the Board ruled that an employee would likely think that the company’s “image” was the reason for the prohibition, not safety.

This is just another decision demonstrating that the Board is going to closely scrutinize any prohibition that could remotely impair an employee’s right to discuss the terms and conditions of employment. If a business adopts such a policy, it should ensure that it has a narrowly tailored and factually justified reason for doing so.

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