Protecting Concerted Activity During the COVID-19 Pandemic

Key points

  • Media policies which prohibit employees from communicating with the media must be narrowly tailored to protect legitimate business interests such as protecting confidential information and controlling statements made on behalf of the employer; and
  • Media policies that specifically exclude communications by employees that are not made on behalf of the employer and that relate to labor disputes or other concerted communications for the mutual aid or protection under the National Labor Relations Act (Act) are lawful.

On March 30, 2020, the NLRB issued the decision, Maine Coast Regional Health Facilities, which is relevant for substantially all employers due to the uncertainty and heightened health and safety issues that confront employees and employers during the COVID-19 pandemic. The Board decision confirms that employer media policies must be narrowly tailored to protect legitimate employer interests and must not infringe on employees’ right to communicate with the media to bring attention to employee concerns regarding labor disputes or working conditions regardless of whether a union is involved.

Media policy

Eastman Maine Hospital Systems (EMHS) is the parent company of Main Coast Regional Health Facilities and maintained a media policy that was one of over 260 policies made available to employees through an online portal. The media policy provided as follows:

No EMHS employee may contact or release to news media information about EMHS…without the direct involvement of the EMHS Community Relations Department or of the chief operating officer responsible for the organization. Any employee receiving an inquiry for the media will direct that inquiry to the EMHS Community Relations Department, or Community Relations staff at that organization for appropriate handling.

An employee of Maine Coast Regional Health Facilities submitted a letter to the editor of a local paper discussing staffing shortages at the hospital, the adverse impact of the shortages on employees’ working conditions and expressed support for the nurses’ union efforts to improve staffing levels. EMHS subsequently discharged the employee because submission of the letter to the editor violated the terms of the media policy. After the employee filed a ULP charge, EMHS amended the original media policy to include the following savings clause:

This Policy does not apply to communications by employees not made on behalf of EMHS or a member organization, concerning a labor dispute or other concerted communications for the purpose of mutual aid or protection protected by the National Labor Relations Act.

EMHS never repudiated the employee’s discharge nor notified its employees of the amended media policy.

ALJ decision

The ALJ found that the terminated employee was the only employee that had ever been terminated for violation of the media policy. As a result, he noted that the media policy had only ever been invoked to interfere with the exercise of §7 rights under the Act. As a result, the ALJ determined that the media policy was unlawful under the Boeing analytical framework for the following reasons:

  • The discharge violated the Act in that the employee’s submission of the letter to the editor was protected concerted union activity, and the original media policy was the stated reason for the discharge;
  • The original media policy was unlawful under the Boeing standard as a category 3 violation because it significantly infringed on employees’ right to communicate with the media to draw attention to the need to improve working conditions; and
  • The amended media policy was unlawful because EMHS failed to repudiate the discharge of the employee and failed to inform employees that the protected concerted activity in which the former employee had engaged was permitted under the amended policy.

The ALJ further clarified that EMHS’ failure to repudiate the discharge and to inform employees of the amended policy could lead an objective employee to reasonably conclude that the amended policy continued to prohibit the type of activity that resulted in the discharge. As a result, the ALJ ordered the reinstatement of the employee, and other relief.

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Board decision

The Board affirmed the ALJ decision that the employee was discharged for engaging in protected concerted union activity in violation of the Act and that the original media policy was overly broad and unlawful under Boeing. The Board, however, reversed the ALJ ruling as to the amended policy only.

The Board evaluated the amended media policy under the Boeing framework to determine whether the facially neutral media policy could reasonably be interpreted to interfere with the exercise of rights under the Act. If the amended media policy could be reasonably interpreted to restrict §7 activity, the Board would have been required to engage in a balancing test that weighs the employer’s justifications of the policy against the potential adverse impact on §7 rights.

The Board, however, never reached the Boeing balancing test. Instead, it concluded that the “clear language” of the amended media policy excluded communications by employees relating to labor disputes and concerted activity. As such, an objective employee could not reasonably construe the amended media policy as restricting §7 rights.

The Board disagreed with the ALJ’s conclusion that EMHS’ failure to repudiate the discharge and inform employees of the amended policy would lead employees to believe that the amended policy still prohibited the type of activity engaged in by the discharged employee. Instead, the Board cited as significant that the employee’s discharge was the first and only discharge under the original media policy and concluded that the employees “isolated discharge” would not obscure the ”very clear meaning of the savings clause in the amended media policy which expressly permits §7 activity. The Board categorized the amended media policy as a lawful Category 1(a) policy under the Boeing test and as further defined in LA Specialty Produce Co.

What this means to you

The Board decision is a reminder to employers that concerted activity includes the actions of a single employee who brings group complaints to the attention of the employer. Additionally, broad media policies unlawfully restrict the exercise of §7 rights if the policy restricts any communication with the media and is not limited in scope to protect legitimate business interests such as the protection of confidential information or controlling statements made on behalf of the employer. As health-care workers continue to face health and safety issues related to exposure to COVID-19 in the workplace and a shortage of personal protective equipment, employers may experience an increase in the incidence of employees’ discussing health and safety issues with third parties on social media or in the news media to bring attention to the issues. Employers must recognize that such statements may constitute protected concerted §7 activity under the Act.

Terry L. Potter is an attorney in Husch Blackwell LLP's St. Louis office focusing on labor and management relations. He spent time with the National Labor Relations Board as a field attorney. 

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