In a recent 3-1 decision, the National Labor Relations Board (NLRB or Board) ruled that a nonprofit employer violated the National Labor Relations Act (NLRA or Act) by discharging several employees who posted critical comments about a coworker on Facebook. Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012).

Facts

Marianna Cole-Rivera and Lydia Cruz-Moore were coworkers employed by Hispanics United of Buffalo, Inc. (HUB) to assist victims of domestic violence. The two employees frequently communicated with each other by phone and text message during the workday and after hours. According to Cole-Rivera’s credited testi­mony, Cruz-Moore often criticized other HUB employees during these communications, particularly housing department employees who, Cruz-Moore asserted, did not provide timely and adequate assistance to clients. Other employees similarly testified that Cruz-Moore spoke critically to them about their work habits and those of other employees.

This “criticism” issue escalated on Saturday, October 9, 2010, a nonworkday, when Cole-Rivera received a text message from Cruz-Moore stating that the latter in­tended to discuss her concerns regarding employee performance with Executive Director Lourdes Iglesias. Cole-Rivera sent Cruz-Moore a responsive text questioning whether she really “wanted Lourdes to know . . . how u feel we don’t do our job. . . .” From her home, and using her own personal computer, 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 [HUB]. I about had it! My fellow coworkers how do u feel?

Four off-duty employees — Damicela Rodriguez, Ludimar Rodriguez, Yaritza Campos, and Carlos Ortiz — responded by posting messages, via their personal computers, on Cole-Rivera’s Facebook page; the employees’ responses gener­ally objected to the assertion that their work performance was substandard.

Cruz-Moore also responded, demanding that Cole-Rivera “stop with ur lies about me.” She then com­plained to Iglesias about the Facebook comments, stating that she had been slandered and defamed. At Iglesias’ request, Cruz-Moore printed all the Facebook comments and had the printout delivered to Iglesias. On October 12, the first workday after the Facebook postings, Iglesias discharged Cole-Rivera and her four coworkers, stating that their remarks constituted “bullying and harassment” of a coworker and violated the Respondent’s “zero tolerance” policy prohibiting such conduct.

The Majority’s Decision

In Meyers I, the Board held that the discipline or discharge of an employee violates Section 8(a)(1) of the the NLRA if the following four elements are established: (1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act; (2) the employer knew of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity. Only the first and third elements were in dispute in this case: whether the employees’ Facebook com­ments constituted concerted activity and, if so, whether that activity was protected by the Act.

The Board first defined concerted activity in Meyers I as that which is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” In Meyers II, the Board expanded this definition to include those “circum­stances where individual employees seek to initiate or to induce or to prepare for group action, as well as individ­ual employees bringing truly group complaints to the attention of management.”

Applying these principles, the Board found that “there should be no question that the activity engaged in by the five employees was concerted for the ‘purpose of mutual aid or protection’ as required by Section 7.” In her initial Facebook post, Cole-Rivera alerted fellow employees of another employee’s complaint that they “don’t help our clients enough,” stated that she “about had it” with the complaints, and solicited her coworkers’ views about this criticism. According to the Board, “(b)y responding to this solicita­tion with comments of protest, Cole-Rivera’s four co­workers made common cause with her, and, together, their actions were concerted within the definition of Meyers I, because they were undertaken ‘with . . . other employees.’” The Board further held that the actions of the five employees were also concerted under the expanded definition of Meyers II, because they “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.” In that regard, the Board reasoned that even absent an express announcement about the object of an employee’s activity, “a concerted objective may be inferred from a variety of circumstances in which employees might discuss or seek to address concerns about working conditions . . . .”

The Board concluded as follows:

The Board has long held that Section 7 protects employee discussions about their job performance, and the Facebook comments plainly centered on that subject. As discussed, the employees were directly responding to allegations they were providing substandard service to the Respondent’s clients. Given the negative impact such criticisms could have on their employment, the five employees were clearly engaged in protected activity in mutual aid of each other’s defense to those criticisms.

For these reasons, the Board held that the discharge of the five employees violated the Act.

The Dissent

In dissent, Member Brian Hayes acknowledged that the Facebook colloquy may have been concerted, in the sense that it was actual group activity, but he claimed there was no proof that it was activity under­taken for “mutual aid and protection.” “Not all shop talk among employees — whether in-person, telephonic, or on the internet — is concerted within the meaning of Section 7, even if it focuses on a condition of employment.” In his view, there was no showing that the object of the posting was to initiate or induce group action. “Absent evidence of a nexus to group action, such conversations are mere griping, which the Act does not protect.”

Conclusions

This case may encourage employees, whether unionized or not, to test the limits of protected concerted activity on social media. Employers must use care when disciplining or discharging employees for posting critical workplace information on the Internet, and must draft their social media policies with these considerations in mind.