NLRB Judge Bans Hospital Chain’s ‘Overly Broad’ Social Media Rules

PITTSBURGH —A National Labor Relations Board administrative law judge has banned the University of Pittsburgh Medical Center’s “overly broad” rules against workers using social media. If upheld, his decision could aid union communications during organizing drives nationwide.

But judge David Goldman’s April 19 ruling wasn’t a complete win for the Service Employees (SEIU), who challenged three UPMC communication rules. Goldman ruled for SEIU in two, but upheld the other, prompting SEIU to appeal that up to the full board.

And Goldman said a ban is legal if it’s total – banning everything – union, non-union and otherwise.

Goldman’s decision could become important if the full board and, later, the federal courts, uphold it. That’s because unions increasingly use social media, such as Twitter and Facebook, to communicate not just with their own members but also with prospective members during organizing drives.

It also marks another turn in the twisting road the board is on as the agency wrestles with union-boss disputes over use of social media – media rapidly replacing traditional union communications methods, such as bulletin boards, in workplaces.

Goldman’s “decision confirms the ‘chilling effect’ we have all been experiencing,” said Leslie Poston, a unit secretary at Presbyterian Hospital, one of UPMC’s many Pittsburgh-area institutions. UPMC is now the Steel City’s largest employer.

UPMC “failed to define the area of permissible conduct” on social media “in a manner clear to employees and thus caused employees to refrain from engaging in protected activities,” under labor law, such as discussing wages and working conditions, Goldman said.

And the workers shouldn’t have to face the same uncertainty when using the employer’s internal e-mail system, either, Goldman ruled.

UPMC’s “e-mail and messaging policy does not prohibit using the electronic communications system for all non-job purposes, but rather, bars only vaguely charac-terized types of communications,” namely those “that may be ‘disruptive,’ ‘offensive’ or ‘harmful to morale,’” Goldman added. Those standards are too vague, he stated.

The hospital could use those terms to illegally ban workers from discussing wages, working conditions, benefits and other issues labor law protects, the ALJ said.
Press Associates, Inc. (PAI) – 5/3/2013
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And when it came to social media, Goldman tossed UPMC’s restrictions on worker use of Twitter, Facebook and the like as both too broad and discriminatory.

Workers can use UPMC’s computers “to participate in Facebook, MySpace, Twitter, and other such sites, as long as the employees do not describe any affiliation with UPMC, do not ‘disparage or misrepresent’ UPMC, (do not) make ‘false or misleading statements regarding UPMC,’ or (do not) use UPMC logos, or other copyrighted or trademarked materials,” he noted.

But the workers “can make statements and communications that fall within the scope of these restricted areas if written prior consent is obtained from UPMC. Based on much the same reasoning set forth above regarding the electronic mail and messaging policy, these overly broad and vague restrictions on employee use of technology resources, which employees can avoid if they seek and receive permission from the employer, violate” labor law, Goldman said.

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“Employees confronting an employer’s rule ‘should not have to decide at their own peril what information is not lawfully subject to such a prohibition,’” he added. “Such ambiguity and over-breadth is unlawful precisely because it chills” legal worker “activity. An employee will reasonably avoid (that) activity precisely out of concern the employer may apply the rule in a manner that impermissibly singles out that activity.

“This is the very essence of the problem board precedent is designed to prevent,” Goldman said.

“UPMC keeps trying to silence us – in the hallways of the hospital, on the sidewalks outside the hospitals, in our homes, on email and Facebook, but that’s not how things work in this country,” Poston added. “UPMC should stop trying to intimidate us and start working with its employees to improve our jobs and our hospital.”

“It would be one thing, pursuant to Register-Guard” — the prior board ruling on using company computers and e-mail for union business — “to promulgate a rule barring use of an employer’s e-mail system for non-work matters, including (legal) solicitation” of workers during organizing drives, Goldman said. That’s legal, he added. So is barring solicitation on hospital premises for any outside group or organization.

“However, a rule barring solicitation for groups or organizations ‘unless sanctioned by UPMC executive management’ holds out the prospect that there are groups and organizations on whose behalf employees will be permitted to solicit — as long as management approves,” and that’s illegal, Goldman stated. “A reasonable employee will be chilled from even asking.”