ALJ Finds That Employer’s News Media Policy Prohibiting Employees’ Contact With Media Regarding “Company Operations” Violates NLRA

An NLRB Administrative Law Judge (ALJ) recently found that a news media policy issued by Phillips 66 violated Section 8(a)(1) of the NLRA, which prohibits employers from interfering with the exercise of employees’ rights to organize. The ALJ’s decision addressed the “News Media Guidelines” issued by the company in late 2012. The guidelines were sent in an e-mail by the site manager of the company’s refinery in Santa Maria to the refinery’s employees. The e-mail stated:

With the recent supply and demand issues in California, and the resulting price increases, it is extremely important for all employees and contractors to not speak to the news media about our operations. Confidentiality is a condition of employment and I urge you to not speculate on market conditions or refinery operations.

Please be aware of the following guidelines.

News Media Guidelines

If a Phillips 66 employee or on-site contractor is contacted by a member of the news media, no information exchange is permitted concerning Santa Maria or Rodeo Refinery operations. It is against company policy for anyone but an authorized company spokespersons (sic) to speak to the news media. This is to ensure that our company’s communications to the public are aligned and consistent, and that they are factual and meet all legal and business confidentiality requirements. All media inquiries are to be referred to the designated site spokesperson. . . .

The ALJ found that the policy “violates the [NLRA] because, absent clarification, employees could reasonably construe these guidelines to prohibit them from discussing labor disputes, wages, or other terms and conditions of their employment.” The ALJ rejected the employer’s argument that the guidelines were only “intended to prohibit employees, other than a designated spokesperson, from speaking to the media on its behalf about confidential company operations (i.e., recent supply and demand issues in California and the resulting price increases).” The ALJ explained that because the “ambiguous rule prohibits all ‘information exchange’ about ‘company operations,’ and those terms are ill defined, the guideline, as written, could also encompass and prohibit communications about ‘wages,’ ‘labor disputes,’ and other terms and conditions of employment.” Accordingly, the ALJ held that the policy “reasonably tends to chill protected activity.”

Employers who have similar provisions in their social media policy that restrict employees from communicating with the media on the employer’s behalf are reminded to ensure that such provisions are narrowly drafted, so that they cannot be interpreted, like the ALJ did in the case above, as overbroad and infringing on employees’ Section 7 rights.

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