This National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) decision addresses two consolidated cases involving the United States Postal Service (USPS) and two employees, Kellan Kirkconnell and Keren Williams, who were disciplined for actions deemed protected concerted activity.

In the case of Kellan Kirkconnell, the USPS issued him a notice of removal, later reduced to a 7-day suspension with pay, following his creation and posting of TikTok videos discussing a new rural route carrier evaluation system that significantly reduced his salary and increased his workload. The ALJ found that Kirkconnell's videos constituted protected concerted activity as they involved discussions about wages and working conditions, and encouraged group action or addressed group complaints. The ALJ rejected the USPS's arguments that Kirkconnell's actions were individual or for personal gain, noting that his posts referenced the impact on other employees and that his TikTok account was not monetized at the time.

The USPS also relied on its Employee Labor Relations Manual (ELM) 665.16, concerning employee behavior and personal habits. The ALJ determined that this rule was facially overbroad under the Stericycle standard, as it required employees to conduct themselves in a manner that reflected favorably upon the Postal Service and prohibited conduct prejudicial to it, which could reasonably chill protected concerted activity. The USPS failed to demonstrate that this broad prohibition was necessary to advance legitimate business interests that could not be achieved with a more narrowly tailored rule.

Furthermore, the ALJ found that the USPS, through Supervisor Duncan, violated Section 8(a)(1) by: 1. Creating the impression of surveillance by telling Kirkconnell he was "being watched" and "anything you post... is being watched." 2. Instructing employees not to post work-related content on social media and directing the removal of protected concerted posts. 3. Threatening employees with reprisals for engaging in protected concerted activity.

The ALJ dismissed the allegation of unlawful surveillance, finding insufficient evidence that the USPS acted "out of the ordinary" to observe the protected activity.

In the case of Keren Williams, the USPS issued her a notice of removal, also reduced to a 7-day suspension with pay, for taking a picture of an overflowing ADUS machine with her cell phone, citing violations of an internal Management Instruction (MI) AS-882-2011-6, which prohibited camera use in postal facilities. The ALJ found that Williams's act of photographing the machine was protected concerted activity, as it was done to document and report an unsafe working condition, invoking Article 14 of her collective-bargaining agreement concerning safety. The USPS's argument that Williams's action was not in good faith was rejected, as photographing the unsafe condition was a reasonable means to inform her supervisor.

The ALJ determined that MI AS-882-2011-6 was unlawfully overbroad because it lacked a specific savings clause for protected Section 7 activity. While acknowledging the USPS's legitimate interest in privacy and security, the ALJ found that the rule could have been narrowly tailored to permit photography of workplace safety issues, especially when conducted in accordance with a collective bargaining agreement.

The ALJ also found that the USPS violated Section 8(a)(1) by directing Williams not to photograph her working conditions, as this interfered with her protected concerted activity. The ALJ rejected the USPS's contention that the Board could not rescind the management instruction, finding no conflict with the Postal Reorganization Act and noting that collective bargaining agreements do not legitimize otherwise unlawful rules.

In summary, the ALJ recommended finding the USPS violated Section 8(a)(1) by maintaining and enforcing overbroad rules, disciplining employees for engaging in protected concerted activity, creating an impression of surveillance, and unlawfully restricting social media use and photography related to working conditions. The recommended remedy includes rescinding portions of the overbroad rules, removing disciplinary actions from employee files, and posting notices to employees.

Significant Cases Cited

• Stericycle, Inc., 372 NLRB No. 113 (2023): This case established the current two-part test for evaluating whether a work rule is unlawfully overbroad, requiring an assessment of whether the rule has a reasonable tendency to chill employees' Section 7 rights and, if so, whether the employer can justify the rule by advancing legitimate business interests with a more narrowly tailored approach.
• NLRB v. Electrical Workers UE Local 1229 (Jefferson Standard), 346 U.S. 464 (1953): This Supreme Court case held that employees can lose the protection of the Act if their concerted activity involves disparaging attacks on the employer that are unrelated to a labor dispute and tend to harm the employer's business.
• Meyers Industries, Inc., 268 NLRB 493 (1984) and 281 NLRB 882 (1986) (Meyers I & II): These cases defined what constitutes concerted activity, establishing that it includes actions taken with or on the authority of other employees, or individual actions taken to initiate or prepare for group action, or bringing group complaints to management.
• NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984): This Supreme Court decision affirmed the "Interboro doctrine," holding that an individual employee's assertion of a right grounded in a collective-bargaining agreement constitutes protected concerted activity, regardless of whether the employee's interpretation of the right is ultimately correct.
• Pier Sixty LLC, 362 NLRB 505 (2012): This case outlined factors to consider when determining if an employee's social media posts, otherwise constituting concerted activity, lose their protected status due to misconduct, examining aspects like employer hostility, provocation, impulsivity of conduct, and the nature of the statements.

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