Author: Troy D. Thompson
On December 14, 2012, the National Labor Relations Board (NLRB) issued another decision against a nonunionized employer. This time, it found the employer liable for discharging five employees for comments they posted on Facebook. It’s the latest decision in a series of cases in which the Board has sought to demonstrate its relevance at a time when private-sector union membership is at an all-time low. Nonunionized employers can expect to see a significant spike in these types of cases as at-will employees become increasingly aware of this “new” venue by which they can challenge their employers’ discipline and discharge decisions.
Hispanics United of Buffalo, Inc. (HUB), is a nonprofit corporation that provides social services to the poor. Those services include housing, advocacy for domestic violence victims, translation and interpretation services, a food pantry, senior and youth services, and employment assistance. HUB’s executive director is Lourdes Iglesias.
HUB employs various personnel to perform its services, including Marianna Cole-Rivera and Lydia Cruz-Moore. The two women regularly communicated with each other by text messages during the workday and after hours. In those messages, Cruz-Moore often criticized other employees. On October 9, 2010, a non-work day, Cruz-Moore’s criticisms escalated when she texted Cole-Rivera to tell her that she intended to discuss her concerns with Iglesias. Cole-Rivera responded with a text asking Cruz-Moore whether she really wanted Iglesias to know her feelings about other employees’ job performance. From her home, Cole-Rivera then posted the following message on her Facebook page:
Lydia Cruz, a coworker[,] feels that we don’t help our clients enough at [work]. I about had it! My fellow coworkers[,] how do u feel?
Four off-duty employees responded by posting messages on Cole-Rivera’s Facebook page from their home computers. They generally objected to the assertion that their work was substandard. Cruz-Moore became aware of the Facebook postings and demanded that Cole-Rivera “stop with ur lies about me.” She then complained to Iglesias, claiming that Cole-Rivera slandered and defamed her.
On October 12, Iglesias met individually with the five employees who made the Facebook posts and fired each of them. She told them that Cruz-Moore suffered a heart attack as a result of their harassment and that HUB was going to have to compensate her. It’s unclear what basis Iglesias had for that assertion. Nevertheless, she stated that the posts constituted bullying and harassment in violation of HUB’s zero-tolerance anti-harassment policy. She handed some of the employees their termination letter in the meeting; the others received a termination letter in the mail a few days later.
NLRB Finds Protected Concerted Activity
Section 8(a)(1) of the National Labor Relations Act (NLRA) provides that it is an unfair labor practice (ULP) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. Section 7 provides that employees have the right to self-organize, bargain collectively through representatives of their own choosing, and engage in other concerted activities (e.g., form, join, or assist a labor organization) for the purpose of collective bargaining or other mutual aid or protection. Significantly, the NLRA applies to unionized and nonunionized employers that meet the law’s jurisdictional requirements.
Under NLRB case law, it is well settled that a discipline or discharge decision violates Section 8(a)(1) when the following conditions are met:
(1) The activity engaged in by the employee was “concerted” within the meaning of Section 7.
(2) The employer knew of the concerted nature of the employee’s activity.
(3) The concerted activity is protected by the NLRA.
(4) The discipline or discharge was motivated by the employee’s protected concerted activity.
In this case, there was a dispute over the first and third elements—that is, whether the employees’ Facebook comments constituted concerted activity and, if so, whether that activity was protected by the NLRA.
Concerted activity is activity that is engaged in with or on the authority of other employees and not solely by and on behalf of the employee engaging in the conduct. It includes circumstances in which individual employees seek to initiate, induce, or prepare for group action or bring group complaints to the attention of management.
The NLRB decided that the five terminated employees engaged in protected concerted activity for the purpose of mutual aid or protection within the meaning of Section 7. Cole-Rivera’s initial Facebook post alerted her coworkers of another employee’s complaint about their job performance. She then solicited their views about the criticism. By responding to her solicitation with comments of protest, the four coworkers engaged in union-like activities with her, and together, their actions were concerted under the law. Additionally, the Board found that their actions were concerted because the employees were taking a first step toward group action to defend themselves against accusations they reasonably could believe Cruz-Moore was going to make to management.
HUB argued that it was allowed to terminate the at-will employment of the employees because their comments constituted unprotected bullying and harassment in violation of its zero-tolerance anti-harassment policy. In rejecting that defense, the NLRB concluded that the Facebook comments couldn’t reasonably be construed as harassment. It explained that even legitimate managerial concerns directed at preventing harassment “do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to . . . discipline on the basis of the subjective reactions of others to their protected activity.”
The Board further criticized the employer’s heavy reliance on a single coworker’s subjective claim that she was offended by the Facebook comments. The NLRB stated that “such a wholly subjective notion of harassment is unknown to the NLRA,” and discipline imposed on that basis violates Section 8(a)(1). It then ordered HUB to reinstate all five former employees to their previous positions with full back pay and benefits.
The decision wasn’t unanimous. NLRB Member Brian Hayes filed a dissenting opinion. He would have decided that the Facebook postings didn’t constitute protected concerted activity because there was no evidence that the conduct was undertaken for mutual aid or protection. He noted that there is a meaningful distinction between “sharing a common viewpoint” with other employees and “joining in a common cause.” He stated that only the latter involves group action for mutual aid or protection, and he didn’t see any evidence of such conduct in this case. Hispanics United of Buffalo, Inc., Case 03-CA-027872, 359 NLRB No. 37 (December 14, 2012).
We agree with Hayes’ dissenting opinion in this case. However, there is no denying the significant risks associated with disciplining or discharging employees for content posted on social media sites. Fortunately, the NLRB hasn’t given employees the green light to engage in any conduct they choose. However, they can engage in a lot of conduct that many reasonable employers would find objectionable. Therefore, it is important for employers—especially those that aren’t unionized—to consider Section 7 issues before taking action against an employee based on social media posts. We will continue to closely monitor developments in this area of the law and periodically report back to you.
The effect of this and other NLRB decisions is now in limbo in light of a decision on January 25, 2013, by the U.S. Court of Appeals for the District of Columbia Circuit. The court ruled that the three NLRB recess appointments made last year by President Barack Obama were unconstitutional. However, according to the NLRB, it is going to continue issuing decisions, despite the court’s ruling, until the U.S. Supreme Court tells it otherwise. Employers, you should proceed cautiously.
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For more information about NLRB Pokes Another Nonunion Employer Over Facebook, contact Attorney Troy D. Thompson at firstname.lastname@example.org or 608.283.6746.
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