UNITED STATES OF AMERICA
`BEFORE THE NATIONAL LABOR RELATIONS BOARD
`DIVISION OF JUDGES
`
`JD–21–14
`Flint, MI
`
`THE KROGER CO. OF MICHIGAN,
`
`and
`
`Case No. 07–CA–098566
`
`ANITA GRANGER, an Individual.
`
`Counsel:
`
`Darlene Haas-Awada, Esq. (NLRB Region 7)
`of Detroit, Michigan, for the General Counsel
`
`Terrence J. Miglio, Esq. and
`Barbara E. Buchanan, Esq. (Keller Thoma, P.C.)
`of Detroit, Michigan, for the Respondent
`
`DECISION
`
`DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves the government’s
`facial challenge to an employer’s online communications policy. The government contends that
`portions of the policy, including a revised version, are overbroad and would have a reasonable
`tendency to chill employee conduct protected by the National Labor Relations Act. As discussed
`herein, I agree with the government’s allegations in all significant respects. In reaching this
`conclusion I reject the employer’s partial statute of limitations defense. I also reject the relevance
`of its claim that a National Labor Relations Board Regional Director, in the past, in another case,
`settled an unfair labor practice allegation by permitting maintenance of an online communication
`policy similar to that at issue here.
`
`

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`JD–21–14
`
`STATEMENT OF THE CASE
`
`On February 15, 2013, Anita Granger (Granger) filed an unfair labor practice charge
`alleging violations of the National Labor Relations Act (Act) by the Kroger Co. of Michigan
`(Kroger), docketed by Region 7 of the National Labor Relations Board (Board) as Case 07–CA–
`098566. The charge was amended on May 3, July 26, and August 28, 2013. Based on an
`investigation into the charge, on August 30, 2013, the Board’s General Counsel, by the Regional
`Director for Region 7 of the Board, issued a complaint alleging that Kroger promulgated and
`maintained unlawfully broad work policies and unlawfully discharged Granger in violation of the
`Act. Kroger filed an answer and amended answer denying all alleged violations of the Act.
`
`Prior to the opening of the hearing in this matter on January 27, 2014, the Regional
`Director for Region 7, acting on behalf of the General Counsel, approved a request by Granger to
`partially withdraw her charge and ordered dismissal of the complaint allegations alleging her
`unlawful discharge. A hearing was conducted on the remaining allegations of the complaint on
`January 27, 2014, in Detroit, Michigan. Counsel for the General Counsel and counsel for the
`Respondent filed posthearing briefs in support of their positions by March 3, 2014. On the entire
`record, I make the following findings, conclusions of law, and recommendations.
`
`JURISDICTION
`
`Kroger is engaged in the operation of retail grocery stores, with places of business
`throughout Michigan including a store in Flint, Michigan. In conducting its operations during the
`calendar year ending December 31, 2012, Kroger derived gross revenues in excess of $500,000
`and purchased and received at its places of business within the State of Michigan goods valued
`in excess of $5,000 directly from points outside the State of Michigan. At all material times,
`Kroger has been an employer engaged in commerce within the meaning of Section 2(2), (6), and
`(7) of the Act. Based on the foregoing, I find that this dispute affects commerce and that the
`Board has jurisdiction of this case, pursuant to Section 10(a) of the Act.
`
`UNFAIR LABOR PRACTICES
`
`As of February 2011, Kroger maintained an online communication policy for employees
`that stated the following:
`
`ONLINE COMMUNICATIONS POLICY
`
`The Company recognizes that online communications (such as social networking
`sites, personal websites, podcasts, videos, or blogs) are increasingly becoming a
`part of everyday life and are important to many of our associates.
`
`Likewise, online sources can influence the public's impressions of the Company.
`When associates identify themselves as members of the Company and engage in
`inappropriate online communications, they can have a negative effect on the
`Company. Therefore, the Company has a policy on online communications.
`
`You are responsible for the content you publish and the online spaces you
`manage.
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`JD–21–14
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`If you identify yourself as an associate of the Company and publish any work-
`related information online, you must use this disclaimer: "The postings on this site
`are my own and don't necessarily represent the positions, strategies or opinions of
`The Kroger Co. family of stores."
`
`You must comply with copyright, fair use and financial disclosure laws, and you
`must not use without permission or compromise in any way the Company's
`intellectual property assets (like copyrights, trademarks, patents or trade secrets–
`including, for example, Kroger or banner logos, or trade names of products, or
`non-public information about the Company's business processes, customers or
`vendors).
`
`Confidential and proprietary information should not be discussed in any public
`forum unless it has been publicly reported by the Company. Confidential and
`proprietary information includes but is not limited to: financial results, new store
`designs, current or future merchandising initiatives, and planned technology uses
`or applications. Do not comment on rumors, speculation or personnel matters.
`
`The Company's other policies and rules of conduct (including, but not limited to, its
`policy on business ethics, its intellectual property policy and its anti-discrimination
`and anti-harassment policies) apply to all publications of any kind that relate in any
`way to the Company or to your work with the Company. When online, do not
`engage in behavior that would be inappropriate at work and that will reflect a
`negative or inaccurate depiction of our Company.
`
`The Company recognizes the value online media can have. If you would like to
`create or propose a site or other online communications medium for or in the
`interest of Company business purposes (including, for example, marketing,
`communications or other legitimate purposes), you must have approval from the
`Company before initiating or launching it. Speak with your supervisor or other
`leaders from your management team about the approval process.
`
`Please be advised that the Company has the right to monitor online activity,
`including sites or communications external to the Company, that may have an
`effect upon the Company.
`
`As with all Company policies, violations of the terms of this policy can result in
`disciplinary action up to and including termination of employment.
`
`The above-quoted online communication policy is found in the Kroger “Employee
`Handbook,” at page 31-32 (It is also found in the substantially identical employee handbook used
`by Kroger in stores that were previously New Market stores and later acquired by Kroger.) This
`handbook is distributed to all new employees.
`
`On or about August 24, 2011, store managers (including associate store managers and
`co-managers) received an email from Kroger headquarters attaching an updated online
`communications policy with a date on the updated policy of June 24, 2011. The email stated that
`“[p]olicy copies dated prior to 6/24/11 should be discarded.” The email instructed the managers
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`to review the new policy and then post it on the communication boards in their stores. The
`revised June 24, 2011 policy1 stated:
`
`JD–21–14
`
`The Kroger Co.
`Online Communications Policy
`
`Philosophy:
`The Kroger Co. and its family of companies operates in a highly competitive.
`increasingly complex and ever-changing business environment. Our Customer 1st
`strategy requires that we respond differently to the ever-changing wants and
`needs our customers. Everything we do must align and support that strategy.
`One critical element for the success of our Customer 1st strategy is our ability to
`attract and retain the best and most qualified associates.
`
`The company recognizes that online communications (such as social networking
`sites, personal websites, podcasts, videos, or blogs) are increasingly becoming a
`part of everyday life and are important to many associates.
`
`Likewise, online sources can influence the public’s impressions of the Company.
`When associates identify themselves as members of the Company and engage in
`inappropriate online communications, they can have a negative effect on the
`Company. Therefore, the Company has a policy on online communications.
`
`Scope:
`This policy applies to all associates of The Kroger Co and its family of companies.
`
`Effective Date:
`This Policy is effective immediately and supersedes all prior policies regarding this
`subject matter. However, this policy does not supersede any collective bargaining
`agreements, or legal obligations.
`
`Policy Owner:
`Associates should direct questions concerning this policy to a member of
`management. The member of management should direct questions to their
`Division Human Resources Department. The Division Human Resources
`Department should direct questions to The Kroger Co. Manager, HR Policy and
`Administration.
`
`Statement of Policy:
`You are responsible for the content you publish and the online spaces you
`manage.
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`1Throughout this decision I refer to and identify this version of the policy as the June 24, 2011
`(or June 2011) policy. That is the date listed on it. However, I note that there is no dispute that it
`was not unveiled to employees until August 2011.
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`4
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`JD–21–14
`
`If you identify yourself as an associate of the Company and publish any work-
`related information online, you must use this disclaimer: "The postings on this site
`are my own and do not necessarily represent the positions, strategies or opinions
`of The Kroger Co. family of stores."
`
`You must comply with copyright, fair use and financial disclosure laws, and you
`must not use without permission or compromise in any way the Company's
`intellectual property assets (like copyrights, trademarks, patents or trade secrets -
`including, for example, Kroger or banner logos, or trade names of products, or
`non-public information about the Company's business processes, customers or
`vendors).
`
`Confidential and proprietary information should not be discussed in any public
`forum unless it has been publicly reported by the Company. Confidential and
`proprietary information includes but is not limited to: financial results, new store
`designs, current or future merchandising initiatives, and planned technology uses
`or applications. Do not comment on rumors or speculation related to the
`Company's business plans.
`
`The Company's other policies and rules of conduct (including, but not limited to, its
`policy on business ethics, its intellectual property policy and its anti-discrimination
`and anti-harassment policies) apply to all publications of any kind that relate in any
`way to the Company or to your work with the Company. When online, do not
`engage in behavior that would be inappropriate at work–including, but not limited
`to, disparagement of the Company's (or competitors') products, services, executive
`leadership, employees, strategy and business prospects.
`
`The company recognizes the value online media can have. If you would like to
`create or propose a site or other online communications medium for or in the
`interest of Company business purposes including, for example, marketing,
`communications or other legitimate purpose), you must have approval from the
`company before initiating of launching it. Speak with your supervisor or other
`leaders from your management team about the approval process.
`
`Please be advised that the Company has the right to monitor online activity,
`including sites or communications external to the Company that may have an
`effect upon the Company.
`
`Violation of this Policy:
`As with all Company policies, violations of the terms of this policy can result in
`disciplinary action up to and including termination of employment.
`
`Kroger followed its regular procedures for promulgating the updated policy. Flint store
`Manager Kimberly Francis testified that in addition to posting new policies on communication
`boards, she would post new policies by the employee time clocks. The communications boards
`had a designated and prominent place on them (by the weekly work schedules) for the posting of
`new policies.
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`JD–21–14
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`In addition to the store manager, the human resources coordinator, who has responsibility
`for stores in a region of the state, is responsible for ensuring that the stores post policy revisions.
`Scott Bell, the human resources coordinator for the Flint, Saginaw, Bay City region, testified that
`he had responsibility for 20 stores.
`
`In addition to the email and posting, the revised policy was available to Kroger’s
`employees through computers (available at the stores) on the Employer’s internal “intranet” site.
`The human resources coordinator or labor manager would update the intranet site to add revised
`policies. Paper copies of the intranet screen sites were introduced into evidence (R. Ex. 5)
`showing the list of policies under a human resources tab. The page showed a PDF file of each
`policy and its title. The online communication policy showed that it had been “revised 6/24/11”
`alerting a reader of the site that the file contained a change to the policy.
`
`New employees receive information and access to the intranet as part of their orientation.
`However, all new employees also continue to receive the employee handbooks upon their hire,
`which contain the February 2011 online communications policy. The employee handbooks
`continued to be distributed, at least to all new employees, and perhaps more generally (see Tr.
`42, 48, 91–92), even after August 2011. These handbooks are less frequently updated, perhaps
`every “couple of years,” and therefore may contain superseded policies, the newer versions of
`which are found on the intranet or posted on the communications board.
`
`The employee handbook states (page 28) that employees are to consult the
`communication boards before each shift in order to apprise themselves of any information—
`presumably including revised policies—that affect their job.
`
`On December 16, 2012, an employee, Anita Granger, received a “construction advice
`record”—essentially a written disciplinary warning—for “[d]isregard of established rule well known
`to the employee and “[v]iolation of online policy.” According to the warning:
`
`Anita violated the online communication policy which states “When online, do not
`engage in behavior that would be inappropriate at work and that will reflect
`negative or inaccurate depiction o[n] our Company.” Anita violated this
`posting on Face Book about the Kroger Company.
`
`This language is found in the February 2011 online communications policy (found in the
`employee handbook) but is not found in the June 24, 2011 online communications revised policy.
`Bell testified that it was a mistake to rely on the February 2011 online communication policy when
`he wrote up the warning for Granger in December 2012.
`
`A second Kroger disciplinary action from December 2012 was introduced into evidence,
`this one involving the suspension of an employee for numerous offenses including violating “Page
`31 & 32 of the employer handbook. Violation of the on-line communication policy.” Again, this
`evidences that the employee handbook version of the online communication policy was relied
`upon as a basis for discipline in December 2012.
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`JD–21–14
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`Analysis
`
`The General Counsel alleges that the Respondent has been in violation of Section 8(a)(1)
`of the Act by maintaining its February and June 2011 versions of the online communications
`policy. Cognizant of the Act’s statute of limitations, and the fact that the charge in this case was
`first filed on February 15, 2013, the General Counsel confines his allegations to the claim that the
`online communication policy has been unlawfully maintained since August 16, 2012. Specifically,
`the General Counsel challenges five specific portions of Kroger’s online communications policy
`and alleges that they constitute unlawful overbroad limitations on the right of employees to
`communicate regarding activities protected by the Act. Kroger contends that neither its February
`2011 policy nor its revised June 2011 policy violate the Act.
`
`In addition, Kroger contends that the claims against the February 2011 policy are barred
`by the statute of limitations, as it claims that the February 2011 policy was replaced and no longer
`in effect nearly 18 months before the charge in this case was filed. The General Counsel alleges,
`however, that the February 2011 version of the policy remained in effect at all times, even after
`implementation of the June 2011 policy, and that both versions were maintained through the date
`of the hearing in this matter.
`
`Finally, Kroger renews an argument I rejected at trial regarding the relevance of evidence
`of a Regional Director’s 2011 settlement of another unfair labor practice case, involving a similar
`online communications policy.
`
`Herein, I consider all of these matters.
`
`A. Background precedent
`
`The cornerstone of the Act is Section 7, which provides that:
`
`Employees shall have the right to self-organization, to form, join, or assist labor
`organizations, to bargain collectively through representatives of their own
`choosing, and to engage in other concerted activities for the purpose of collective
`bargaining or other mutual aid or protection, and shall also have the right to refrain
`from any or all of such activities.”
`
`A core activity protected by Section 7 is the right of employees to discuss, debate, and
`communicate with each other regarding their workplace terms and conditions of employment.
`“This guarantee [of Section 7 rights] includes both the right of union officials to discuss
`organization with employees, and the right of employees to discuss organization among
`themselves.” Central Hardware Co. v. NLRB, 407 U.S. 539, 542 (1972). This is because
`“[Section 7 organization rights are not viable in a vacuum; their effectiveness depends in some
`measure on the ability of employees to learn the advantages and disadvantages of organization
`from others. Early in the history of the administration of the Act the Board recognized the
`importance of freedom of communication to the free exercise of organization rights." Id. at 543
`(internal citations omitted).
`
`“In determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is
`whether the rule would reasonably tend to chill employees in the exercise of their Section 7
`rights.” Hyundai American Shipping Agency, 357 NLRB No. 80, slip op. at 2 (2011); Lafayette
`
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`JD–21–14
`
`Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). “Where the rules are
`likely to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance
`is an unfair labor practice, even absent evidence of enforcement." Lafayette Park Hotel, supra.
`
`If the rule explicitly restricts Section 7 rights, it is unlawful. Lutheran Heritage, 343 NLRB
`646, 646 (2004). If it does not, "the violation is dependent upon a showing of one of the following:
`(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule
`was promulgated in response to union activity; or (3) the rule has been applied to restrict the
`exercise of Section 7 rights." Id. at 647.
`
`In the instant case, there is neither evidence nor allegation that the challenged portions of
`the online communications policy were promulgated in response to union activity. Further, the
`complaint does not allege that the policy has been discriminatorily applied. Rather, in this case
`the claim is that the online communications policy—both the February 2011 version and the
`revision dated June 24, 2011—reasonably tend to chill employees in the exercise of their rights
`under Section 7.
`
`In making this determination, the Board follows certain guides in its decision making that
`are pertinent here. “As the mere maintenance of the rule itself serves to inhibit the employees
`engaging in otherwise protected organizational activity, the finding of a violation is not precluded
`by the absence of specific evidence that the rule was invoked as any particular date against any
`particular employee.” Farah Mfg. Co., 187 NLRB 601, 602 (1970), enfd. 450 F.2d 942 (5th Cir.
`1971). However, “[I]n determining whether a challenged rule is unlawful, the Board must . . . give
`the rule a reasonable reading. It must refrain from reading particular phrases in isolation, and it
`must not presume improper interference with employee rights.” Lutheran Heritage, supra at 846,
`citing Lafayette Park Hotel, 326 NLRB at 827. Finally, when a rule is ambiguous, “[e]ven if the
`Respondent . . . did not intend the rule to extend to protected communications, [if] that intent was
`not sufficiently communicated to the employees” then “[i]t is settled that ambiguity in a rule must
`be construed against the respondent-employer as the promulgator of the rule.” DirectTV, 359
`NLRB No. 54, slip op. at 2 (2013), citing Lafayette Park Hotel, supra at 828 (even if rule not
`intended to reach protected conduct, its lawful intent must be "clearly communicated to the
`employees"); Flex Frac Logistics, LLC, 358 NLRB No. 127, slip op. at 2 (2012) (“Board law is
`settled that ambiguous employer rules—rules that reasonably could be read to have a coercive
`meaning—are construed against the employer. This principle follows from the Act's goal of
`preventing employees from being chilled in the exercise of their Section 7 rights—whether or not
`that is the intent of the employer—instead of waiting until that chill is manifest, when the Board
`must undertake the difficult task of dispelling it”).
`
`B. The specific provisions of the policy challenged by the General Counsel
`
`The General Counsel contends that the following provisions of the online communications
`policy, in context, are unlawful under the above-standards. Unless otherwise noted, the objected-
`to provisions are identical in the February and June 2011 versions of the policy.
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`JD–21–14
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`1. Provision requiring employees to use a specified disclaimer if they identify
`themselves as an associate of the Employer
`
`If you identify yourself as an associate of the Company and publish any work-
`related information online, you must use this disclaimer: “The postings on this site
`are my own and do not necessarily represent the postings, strategies or opinions
`of The Kroger Co. family of stores.”
`
`To restate: this provision requires an employee who, while involved in online
`communications, identifies him/herself as a Kroger employee and, in addition, “publishes” online
`“work-related” information, to post a prescribed disclaimer.
`
`In considering the lawfulness of this rule under the Act, I think it helpful to set forth some
`preliminary conclusions.
`
`First, in the context of “online communications,” the word “publish” will reasonably be
`understood to apply broadly to any online postings or statements conveying “work-related
`information.”
`
`Second, there is no question but that this rule implicates much Section 7 activity. While
`not all “work-related information” is potentially protected by Section 7, a great deal of it is.
`
`Third, the breadth of the rule is such that we are considering a rule that covers employees
`who are posting online using their own computers and networks, while off-work, and at a home.
`In other words, this is not a Register-Guard case.2
`
`Fourth, and unlike many employer rules that the Board is called upon to evaluate, this one
`does not flatly prohibit any Section 7 communications, or, indeed, any communications at all.
`Instead, what it does is burden certain online statements—including those that are and those that
`are not protected by Section 7—with the obligation to state the disclaimer in conjunction with the
`posting of any matters covered by the rule.
`
`Fifth, it is to be acknowledged that an employer has a legitimate interest in stopping
`unauthorized employees from speaking on behalf of the company, and indeed, from being
`perceived to have spoken on behalf of the company. At the same time, it is also true that much of
`the communications covered by this rule reasonably could never be confused for employer-
`sanctioned speech. As discussed below, in evaluating this rule one must consider with a clear
`eye what the risk is that, in the absence of a disclaimer, employee section 7 activity will be
`mistaken for speech on behalf of the employer. Of course, requiring a disclaimer is easier for the
`employer, no doubt, but problematic under the Act if (and only if) the disclaimer is likely to chill
`legitimate and protected employee speech, and is not justifiable based on the employer’s
`legitimate interest.
`
`
`The ultimate issue, then, is whether requiring a disclaimer for every posting by an
`individual identified as a Kroger employee that conveys “work-related” information unduly burdens
`legitimate Section 7 communication to an extent that would be likely to chill employees
`willingness to engage in it. After all, Section 7 communication is not only protected but valued by
`
`2See Register-Guard, 351 NLRB 1110 (2007) (holding that employees have no statutory right
`to use employer’s email system for Section 7 purposes when ban on such use nondiscriminatorily
`maintained and applied), enfd. in part, denied in part, 571 F.3d 53 (D.C. Cir. 2009).
`9
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`

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`JD–21–14
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`the Act. If a rule does not prohibit activities protected by Section 7, but, rather, unduly burdens
`them to the extent that employees protected activity is chilled, that represents an offense to the
`Act as surely as an overbroad prohibition. Of course, employees’ section 7 rights are not
`boundless. Whether a burdening of Section 7 rights is undue is based on a calculation that
`reflects a balancing of the employees’ section 7 rights with any legitimate interest the employer
`has in the burdening of those rights.
`
`In considering the lawfulness of the disclaimer rule, the first point to be made is that the
`burdensomeness of the disclaimer should not be underestimated: it is reasonably read to apply to
`any communication posted to a group, or the public. It would include an online comment made in
`response to a news article, on Facebook, blogs—examples are endless. Each time an employee
`spoke about workplace conditions in any capacity that would reveal or suggest themselves to be
`an employee of Kroger—and speaking firsthand about workplace conditions by itself suggests
`affiliation with the employer—the disclaimer would have to be repeated. Indeed, if an employee
`indicated approval for another person’s comment about Kroger’s working conditions on Facebook
`by “liking” the comment, the rule could be understood to require the posting of a disclaimer
`(although it is hard to imagine how that could be accomplished).3
`
`Given the breadth of online communications to which the rule applies, it would be
`extremely burdensome to have to post the disclaimer in each instance, or on each new page, and
`this would have a reasonable tendency to chill Section 7 activity in this regard.
`
`Moreover, the insistence that every employee comment on Kroger’s workplace be
`accompanied by the disclaimer poses more subtle risks of chilling effects. It is an implicit
`reminder of the involvement and insertion of the employer into every work-related online
`comment or discussion engaged in by the employee. It denies the employee the right to speak
`publicly about Kroger’s workplace with others without the intrusive demand by the employer that it
`may force its disclaimer upon the discussion. And finally, there is the implicit but unavoidable
`specter of enforcement: if the disclaimer is mandatory, how will its use be monitored and
`enforced by the employer? Not all online communications are public, but they are all subject to
`monitoring with and sometimes without the knowledge of the individuals engaged in discussion.
`This prospect, which is implicit in a rule such as this, cannot but have a tendency to chill Section
`7 speech, just as would an employer that threatened to check union meetings and gatherings to
`see if disclaimer rules are being complied with in that setting.
`
`On the other side of the balance, one must consider the justification for Kroger’s rule. In
`fact, Kroger has not offered any, but it is fairly obvious, and, as referenced above, I accept, that
`Kroger has a legitimate interest in employees not appearing to or actually speaking for or on
`behalf of Kroger. This is a legitimate interest of Kroger’s and an interest Kroger has with regard
`to employees’ online and offline communications. Indeed, it may be assumed that employees do
`not have a legitimate Section 7 right to speak without authorization on behalf of their employer.
`
`However, Kroger’s disclaimer rule is manifestly broader than its legitimate interest. It
`seeks to protect Kroger’s interest by requiring the imposition of a disclaimer on every identifiably-
`employee communication conveying work-related information. This goes far beyond any
`legitimate interest of the Employer, much less any legitimate balancing of the Employer’s interest
`
`3See, Foxwoods Resort Casino, 356 NLRB No. 111 (2011) (employer contends that
`comments attributable to union because union representative indicated approval of comments by
`“liking” the comment).
`
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`JD–21–14
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`with employee Section 7 rights. It simply has not been demonstrated, is highly counterintuitive,
`and defies common sense, that any Kroger employee discussions about Kroger “work related
`information”—online or in the line at the post office—will be likely to be misconstrued as a
`statement of Kroger’s.
`
`As the General Counsel has recognized in related circumstances, the appropriate analogy
`for online communications is the water cooler at work—not a company-issued press release.
`Simply put, unless an employee is actively seeking to give the appearance of speaking on behalf
`of an employer—it is unlikely in the extreme that an employee’s online communications and
`postings will be mistaken for an authorized communication of the employer.
`
`Resolution of this issue follows from the premise that online protected communication
`engaged in by an employee is entitled to the same protection, and may be engaged in with the
`same informality, frequency, and with no more burdensomeness imposed requirements as to
`identification, as any other traditional written, oral, or in-person communication. The adherence
`to this principle cannot be overstated nor its importance underestimated.
`
`An ever increasing amount of social, political, and personal communication, increasingly
`by people of all ages, takes place online. This is no less true for work-related and Section 7
`communication than it is for every other type of communication between people. Surely there are
`very few workplaces in the country where a significant amount of whatever Section 7-protected
`activity that exists, is not happening online between employees. Certainly, the online world is a
`locus of employee union (and anti-union) campaigning. In this regard, employer prohibitions,
`restrictions, and burdens on Section 7 online speech can be no more limiting than that of
`traditional written and oral speech. A rule that required Kroger employees, who are identified as
`such, to mouth a disclaimer whenever they conversed with others about “work-related
`information,” while standing on a street corner, picket line, in church, in a union meeting, or in
`their home, would never—ever—withstand scrutiny. As with traditional, in-person
`communication, this required online disclaimer has no significant legitimate justification and is,
`indeed, burdensome to the point that it would have a tendency to chill legitimate section 7
`speech.
`
`A contrary conception of online communications and indeed, public communications, as a
`rare, formal, carefully prepared, and nonpersonal form of communication is significantly outdated.
`And as tod