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NLRB says Costco social media rule violated federal labor law

By: Pat Murphy, BridgeTower Media Newswires//October 11, 2012//

NLRB says Costco social media rule violated federal labor law

By: Pat Murphy, BridgeTower Media Newswires//October 11, 2012//

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Costco could not enforce a social media rule prohibiting employees from posting online statements that damaged the wholesaler’s reputation, the National Labor Relations Board has decided in rejecting an administrative judge’s findings.

Costco included a rule in its employee handbook that prohibited workers from electronically posting statements that “damage the Company … or damage any person’s reputation.” Employees who violated the rule were subject to discipline, including the possibility of termination.

A union representing Costco employees complained that the social media rule violated §8(a)(1) of the National Labor Relations Act, which generally prohibits employers from interfering with collective bargaining rights.

Costco argued that there was no violation of the Act because employees would not reasonably construe its social media rule as regulating or inhibiting their rights to bargain collectively.

But the board decided that the Costco rule violated §8(a)(1).

“Here, [Costco’s] rule does not explicitly reference [organizing] activity. However, by its terms, the broad prohibition against making statements that ‘damage the Company, defame any individual or damage any person’s reputation’ clearly encompasses concerted communications protesting [Costco’s] treatment of its employees. Indeed, there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule. In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of [Costco] or its agents),” the board said.

In addition, the board decided that Costco violated §8(a)(1) by maintaining a rule that prohibited employees from discussing “private matters” concerning other employees, including family and medical leave, workers’ compensation injuries and accommodations for disabilities.

National Labor Relations Board. Costco v. United Food and Commercial Workers, Local 371, No. 34-CA-012421. Sept. 7, 2012. Lawyers USA No. 993-3541.

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