On September 11, 2020, a three-member National Labor Relations Board panel unanimously ruled that a trade group representing sign language interpreters did not violate Section 8(a)(1) of the Act by removing its members’ posts on its closed Facebook page.  The posts, made by individual members of the trade group, discussed the interpreters’ work conditions and supported unionization.  According to the Board, because the interpreters were not the organization’s employees and thus, not covered by the Act, the trade group could lawfully remove the posts.

In Registry of Interpreters for the Deaf, Inc. and Pacific Media Workers Guild, Local 39521, Case No. 20– CA–164088, the charged party–Registry–is a national professional association of interpreters for deaf individuals.  The trade association maintained an antitrust policy and a civility policy in connection with its members’ use of its private Facebook page.  The antitrust policy prohibited members from using its Facebook page and other online forums as a platform to set prices, fees and other terms for their services.  The civility policy restricted members from using the Facebook page for solicitation.  It further required members to show “mutual respect” and gave the trade association discretion to remove posts it found to be in violation of either policy.  In October 2015, the trade association removed several Facebook posts by members discussing their work conditions and expressing support for unionizing, because they violated the trade association’s policies.

An unfair labor practice charge was filed by a union, which resulted in a complaint being issued.  The parties stipulated to the facts which were not in dispute.

Relying on a 2011 Board decision, New York, New York LLC, 356 NLRB 907 (2011), which this Board overruled last year in Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019) (which we previously covered here), the ALJ held that the trade association’s members were akin to employees of a contractor who performs work on another employer’s premises and were therefore employees covered by the Act.

In reversing the ALJ, the Board found that none of trade association’s members were employees. The trade association did not control, even indirectly, the members’ wages, hours or working conditions.  Nor did the trade association compensate its (approximately 16,000) members.  None of the members performed work for the trade association (either on the trade association’s physical property or in its electronic forums), or for a contractor of the trade association.  Further, the members did not perform work integral to trade association’s business, nor was the registry’s business as a trade association dependent upon the services of its members.  The members whose posts were removed did not identify as trade association’s employees.  Furthermore, only a fraction of the trade association members were employees of any employer.  The Board explained that “[t]hose facts are particularly significant: if the [trade association] does not, even indirectly, control the employee members’ wages, hours, or working conditions, it cannot be found to restrict or interfere with the employee members’ rights as employees.”

The Board did not analyze whether Registry’s policies were lawful under Boeing Co., 365 NLRB No. 154 (2017), choosing instead to dismiss the charge based on the threshold issue of whether the members were statutory employees.


This is an interesting case where the outlines of the coverage of the NLRA. On the surface it appears individuals attempted to discuss the merits of unionization on an online forum, and the posts were removed.  Had such an action been conducted by an employer removing the employee’s posts, there is little doubt such conduct would violate the Act.  In this case, the forum used by the interpreters, and the charging party union, was a closed Facebook page of a trade association.  It seems clear the real target of the union’s organizing efforts was the various employers employing interpreters for various tasks.

The stipulated facts contain the following, which was not cited by either the ALJ or the Board probably because it was a legal conclusion:  “[T]he individual interpreter-members are not employees of [trade association] within the meaning of Section 2(3) of the Act and are not on a long-term or continuous contracted status with the [trade association]”  Section 2(3) of the Act broadly defines the term “employee” to “include any employee, and shall not be limited to the employees of a particular employer. . .”  Ultimately, in Board case law, employee status typically comes down to economic control of the individual.  Here, the trade association’s lack of control over any of the terms and conditions of its members’ work was crucial to the Board finding that they were not employees for purposes of the Act. As such, the interpreters did not have a Section 7 right to post about unions or terms and conditions of employment.   This ruling provides additional clarity in determining whether individuals who do not have an employment relationship with an employer are nevertheless covered by the Act.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.