Is it OK to disable online comments to silence pro-union messages?

• Author: Hyman, Jon

There's a lot going on with a union-organizing campaign at Creature Comforts Brewing Co. in Georgia. While the Brewers Union of Georgia continues to wait for the National Labor Relations Board to schedule a representation election, the union is accusing the brewery of illegal union busting.

According to the union, the brewery (allegedly) illegally fired one of the union's biggest supporters. Moreover, the public and the brewery's employees can no longer express their opposition to the brewery's alleged union-busting tactics by posting comments on Creature Comforts' Instagram posts. The brewery has disabled the ability to comment on all new posts since March 29.

I'd like to tell you that because the Instagram comment policy applies equally to everyone (nonemployees and employees alike), there's nothing unlawful about this under the National Labor Relations Act. But with the current composition of the most pro-union NLRB in history and its equally pro-union general counsel, all bets are off. I'd have real concerns permitting a client to take this step under these or similar circumstances.

Employees have the right under Section 7 of the NLRA to engage in protected concerted activity--to complain between and among themselves about terms and conditions of employment. This right includes the right to express an opinion in favor of unionization and against the termination of co-workers who were allegedly fired for supporting the union...