In Design Technology Group, LLC d/b/a Bettie Page Clothing, NLRB Case No. 20-CA-035511, the National Labor Relations Board (“NLRB” or “the Board”) concluded that the employer’s conduct of terminating non-union employees for postings on Facebook violated provisions within the National Labor Relations Act (“NLRA” or “the Act”) protecting concerted activity amongst coworkers to improve their working conditions.
The terminated employees in the Bettie Page case worked in a women’s retail store located in California. Amongst other complaints, they had expressed concerns with management about safety arising from the fact that their store remained open for an hour after other stores in the area had closed, and that there was no alarm or security system within the store. After an argument with her manager over this issue, one of the employees, Holli Thomas, posted to her Facebook page that she “needs a new job” and that she was “physically and mentally sickened.” Her post lead to the following exchange on Facebook between the coworkers:
Vanessa Morris: It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!!!!
Holli Thomas: bettie page would roll over in her grave.
Vanessa Morris: She already is girl!
Holli Thomas: 800 miles away yet she’s still continues [to make] our lives miserable. Phenomenal!
Vanessa Morris: And no one’s doing anything about it! Big surprise!
Brittany Johnson: “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.
Vanessa Morris: hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation J see you tomorrow!
Ms. Morris did bring in the book about worker’s rights and placed it in the breakroom. Another sales employee told the manager about the above Facebook postings. The manager accessed that employee’s Facebook page and viewed the postings. The owner was also eventually notified of the postings. A few days later, the manager terminated Ms. Thomas and Ms. Morris because “things were not working out.”
Shortly after she terminated Ms. Thomas and Ms. Morris, the manager noticed that another employee who participated in the Facebook discussion, Brittany Johnson, had received a text message from Ms. Thomas. The manager told Ms. Johnson that she was tempted to put a “gag order” on her so that she would not be able to talk with others about her working conditions. Approximately one month later, the manager discharged Ms. Johnson purportedly for tardiness.
On review, the Board concluded that the postings among the three employees were protected concerted activity under the Act. Moreover, the Board found that the employer’s justifications for the terminations (insubordination, misuse of company computers, and tardiness) were mere pretext for unlawful retaliation against these employees for their protected activity. Moreover, in the course of investigating this unfair labor practice, the Board examined the employer’s handbook and found that the employer had also engaged in an unfair labor practice by maintaining a policy prohibiting employees from disclosing wages and compensation to each other or to any third party. Accordingly, the Board ordered the employer to not only reinstate these three employees with full back pay, but also required the employer to publically rescind their wage and salary non-Disclosure policy at all locations company-wide where this rule was in effect.
This decision reinforces the NLRB’s stance that the rights of both union and non-union employees to protest supervisory conduct that affects working conditions remain protected even when done through social media. Moreover, employers facing such unfair labor charges may find themselves defending employment policies that are unrelated to the underlying conduct — a good reason to review such policies and practices to make sure that they do not violate the Act.