Tuesday, June 27, 2023

Can an employer disable online commenting to quell pro-union messaging?

There's a lot going on with the union organizing campaign at Creature Comforts Brewing Company. While the union (known as "BUG") continues to wait for the NLRB to schedule a representation election, BUG continues to accuse the brewery of illegal union busting. 

According to the BUG, the brewery (allegedly) illegally fired Spencer "Spicy" Britton, one of the union's biggest supporters. Moreover, the public and the brewery's employees can no longer express their opposition to the brewery's alleged union busting tactics by posting comments on Creature Comforts' Instagram posts. The brewery has disabled the ability to comment on all new posts since March 29.

I'd like to tell you that because the Instagram comment policy applies equally to everyone (non-employees and employees), there's nothing unlawful about it under the National Labor Relations Act. But with the current composition of the most pro-union NLRB in history and its equally pro-union general counsel, all bets are off. I'd have real concerns permitting a client to take this step under these or similar circumstances.

Employees have the right under section 7 of the NLRA to engage in protected concerted activity — to complain, between and among themselves, about terms and conditions of employment. This right includes the right to express an opinion in favor of unionization and against the termination of co-workers (allegedly) fired for supporting the union, and covers social media posts and comments. Section 8(a)(a) of the NLRA makes it unlawful to an employer "to interfere with, restrain, or coerce employees in the exercise of" those rights. 

In this case, Creature Comforts has limited the ability of employees to post comments expressing opinions about what is transpiring within the brewery. From the employer's perspective, this is both public relations and damage control. From BUG's (and likely the NLRB's) perspective, however, this is likely an unfair labor practice. By prohibiting employees from commenting on Instagram posts, the brewery is "interfering with" and "restraining" employees in the exercise of their rights to engage in protected concerted activity.

If I'm Creature Comfort's legal counsel, I'm advising it to turn commenting back on. It's not only a better look to its pro-union customers, it's also what federal labor law likely requires for its employees.