The National Labor Relations Board (NLRB) continues to expand its interpretation of the forms of employee online behavior that constitute protected concerted activity under the National Labor Relations Act. Recently, in Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), the NLRB held that the simple act of clicking the “like” button under a Facebook post may, in certain circumstances, constitute activity protected by Section 7 of the National Labor Relations Act (NLRA).

Background

The Triple Play Sports Bar case arose out of a former employee of Triple Play Sports Bar and Grille initiating a Facebook discussion in which she complained about having to pay more in income taxes than she had anticipated. That former employee posted the following status update on her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf!!!!!

Three current employees of the restaurant commented on that post, including the following comments:

I F___ING OWE MONEY TOO!

I owe too. Such an a__hole.

I have never had to owe money at any jobs . . . i hope i wont [sic] have to at TP . . . probably will have to seeing as everyone else does!

A fourth employee, who did not comment on the post, clicked the “like” button to register his approval of the initial status update. When the owners of the business found out about the Facebook exchange, they fired the employee who had commented “I owe too. Such an a__hole,” as well as the employee who had simply “liked” the original post.

The two fired employees each filed separate charges with the NLRB alleging that their employer had violated Section 8(a)(1) of the NLRA by discharging them in retaliation for their protected concerted activities. The NLRB held that the employees’ discussion of their tax liabilities was indeed a protected concerted discussion of their working conditions.

The Board held that the employee who had clicked the “like” button had “expressed his support for the others who were sharing their concerns.” According to the Board, the worker had been engaged in protected concerted activity. As such, the NLRB found that the employer had unlawfully discharged him for engaging in that protected concerted activity.

The NLRB also found that the employee who, in commenting on the post, had written “Such an a__hole,” had likewise engaged in protected concerted activity. The employer argued that even if that employee’s comment constituted concerted activity, the comment itself was so disloyal as to lose the protection of the act under the Supreme Court of the United States’ holding in NLRB v. Electrical Workers Local 1229 (Jefferson Standard Broadcasting Co.), 346 U.S. 464 (1953), which held that concerted activity may lose the protection of the NLRA when that activity constitutes a “sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” The Board disagreed with the employer, noting that the comments had been made pursuant to an ongoing labor dispute, had not been directed to the general public, and were not “so disloyal . . . as to lose the Act’s protection” under the NLRA.

Key Takeaways for Employers

The NLRB has issued a number of decisions broadening the definition of what constitutes protected concerted activity in the workplace. At the same time, the Board appears extremely reluctant to find employee activity unprotected—even when the conduct tarnishes the image of the business or is rude or obscene. As a result of this trend, and the Board’s holding in Triple Play Sports Bar, employers must assume that the NLRB would similarly find employees’ “favorites” and “retweets” on Twitter, and “likes” on Instagram to constitute protected concerted activity, if those implicit endorsements relate to their coworkers’ discussions of wages and working conditions. Employers would be well-advised to consider virtually any expression of online support directed toward a coworker’s workplace complaints as a form of protected concerted activity under the NLRA and to carefully evaluate the risks of disciplining or discharging an employee for engaging in that activity.

John T. Merrell is an associate in the Greenville office of Ogletree Deakins.

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