Introduction

On April 19, 2013 the National Labor Relations Board (NLRB) held that the Bettie Page clothing company unlawfully fired employees who used Facebook to discuss complaints about their supervisor’s conduct and other work-related concerns, rejecting the employer’s claim it was tricked into firing the workers. Design Tech. Grp. LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (April 19, 2013).

Background Facts

Bettie Page is a wholesale and retail clothing manufacturer that operates high end stores in San Francisco, CA and Las Vegas, NV. San Francisco store Manager Hayley Griffin (Griffin) and the employees often socialized together outside of work. In July 2012, various Bettie Page employees began calling Carla Avila (Avila), the manager of the Las Vegas store, complaining about Griffin and her managerial skills. Avila instructed Holly Thomas (Thomas), a San Francisco store employee, to write down the issues as they occurred and send them to her.

On September 12, Thomas sent a message to Avila that was also signed by Vanessa Morris (Morris) and Brittany Johnson (Johnson), two other employees in the San Francisco store. The message indicated that the “management situation in our store has become extremely unstable, unsafe, and unprofessional.” The message contained a long description of Griffin’s alleged shortcomings, including that Griffin “used her position to bully, manipulate, and intimidate” the workers.

In response to the message, Jan Glaser (Glaser), the Bettie Page owner, and Avila visited the store and spoke to Griffin and the employees, including Thomas, Morris, and Johnson. None of the employees was disciplined by Glaser concerning the message they sent about Griffin. However, the meetings did not go well. Later that night, the employees posted the following conversation to Facebook:
 

Holli Thomas needs a new job. I’m physically and mentally
sickened.
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 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 8) see you tomorrow!

The next day or so Morris brought the book about worker’s rights to the store and placed it in the break room where other employees looked through it. The book covered matters such as benefits, discrimination, the right to organize, safety, health and sanitation.

After management saw the Facebook posting, Morris and Thomas were eventually fired. Bettie Page claimed that in addition to the Facebook posts, many items led them to fire Morris and Thomas — including finding emails on the Bettie Page computer from Morris to various competitors seeking a sales position. Johnson was later fired for her limited participation in the Facebook string.

The NLRB’s Decision

Section 7 of the NLRA protects “the right ... to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Pursuant to Section 8(a)(1) of the Act, employers may not “interfere with, restrain, or coerce employees in the exercise of” their Section 7 rights. The complaint alleged that Bettie Page violated Section 8(a)(1) by terminating the employees after they engaged in the Facebook discussion about worker’s rights.

NLRB Chairman Mark Gaston Pearce and Members Richard F. Griffin and Sharon Block agreed with an Administrative Law Judge (ALJ) that Morris and Johnson were engaged in protected concerted activity under Section 7 when they used Facebook to continue earlier discussions about their employment conditions and the rights of workers under California law. The Board held that Bettie Page violated the NLRA by firing Morris and Johnson, as well as a third employee who briefly participated in the online discussion.

Specifically, the NLRB agreed with the ALJ’s conclusion that “the Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns.” The ALJ concluded, and the NLRB agreed, that “(s)uch conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.”

The Board rejected Bettie Page’s defense that they had somehow been “tricked” into firing the employees. Bettie Page relied on another Facebook post of Thomas that stated that, after she had been terminated, she was excited and that the company had “fallen into her clutches.” Bettie Page contended that the Facebook postings were not protected because the employees had “no ‘honest and reasonable belief’ that the purpose of their conduct was for the mutual aid and protection of employees,” and that instead, the employees “schemed to entrap their employer into firing them.”

The ALJ concluded that this theory was “nonsensical,” and the NLRB agreed. The Board observed that “(t)here is no credited evidence that the employees’ actions were undertaken to entrap the Respondent into committing an unfair labor practice. But even if the employees were acting in the hope that they would be discharged for their Facebook postings, the Respondent failed to establish that the employees’ actions were not protected by the Act.” Accordingly, the Board concluded that Bettie Page had violated Section 8(a)(1) of the Act in discharging the employees for engaging in protected concerted activity.

Conclusion

Bettie Page is yet another case that demonstrates how broadly the Board interprets protected concerted activity and how employers must be careful when disciplining or discharging employees who make critical social media posts about the employer.