ILMA Compoundings October 2016 - 55

RULES & REGS

the protected status was if the employee's comments were
accompanied by a malicious intent. The NLRB cited two cases
that held that, "Statements are made with malicious motive if
they are made with knowledge of their falsity or with reckless
disregard for their truth or falsity ... this analysis also applies to
false, misleading, inaccurate, or incomplete statements ."3
The NLRB also found that the prohibition against dissemination
of confidential information was problematic because the
term was not defined in the SMCOC and therefore subject to
broad interpretation. Similarly, the NLRB ruled "disparaging
statements" was overly broad and easily could encompass
protected rights and was therefore a violation of the NLRA.
As illustrated by the decision, the NLRB has been interpreting
a wider range of topics in social media posts to relate to
protected NLRA § 7 activities/rights. Given the ever-changing
legal landscape in this area of labor law, it may be appropriate

to craft and review any such policies with your local counsel
to ensure they are narrowly tailored and comply with NLRB
decisions.
1. The case also involved circulation of a petition pertaining to working conditions (e.g., break times) that Kennedy was directed to stop circulating, and
that same petition ultimately served as grounds for the termination of his employment. The NLRB found these actions to be in violation of the NLRA as
well. Other issues were involved; however, this article is limited in scope to the
concerns related to social media.
2. Despite the fact that the provisions in question did not pertain to an explicit
NLRA §7 right, the NLRB found that employees would reasonably understand
the SMCOC to have the effect of chilling those protected rights.
3. See TNT Logistics North America Inc. 347 NLRB 568, 569 (2006); Sprint/United
Management Co., 339 NLRB 1012, 1018 (2003).

Bryant serves as regulatory counsel to ILMA through Bassman,
Mitchell, Alfano & Leiter Chtd. He may be reached at 202-386-7670
or dbryant@bmalaw.net.

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LUBRICANTS & METAL
WORKING FLUIDS

Creating value, growing together

Compoundings October 2016 * 55 * Vol. 66 No. 10

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ILMA Compoundings October 2016

Table of Contents for the Digital Edition of ILMA Compoundings October 2016