In Tasker Healthcare Group dba Skinsmart Dermatology, NLRB Div. of Advice, Case No. 04-CA–094222 (issued 5/8/13, released 5/17/13), the NLRB’s Division of Advice concluded that an employer did not commit an unfair labor practice when it fired an employee for profanity-filled comments she made about the Company in a private Facebook group message. Despite the pretty rough profanities used, the conclusion reached by the NLRB’s Associate General Counsel was far from obvious, given the fairly extreme way the NLRB has recently expanded what constitutes “protected, concerted activity” in both the union and non-union environments, as has recently been reported on this blog. Indeed, until this glimmer of hope for employers, the notion that to be protected, Section 7 activity also had to be “concerted” had been severely eroded, if not totally eviscerated, since the Board’s seminal decision in Meyers Industries, 261 NLRB 882, 885 (1986) (Meyers II) aff’d sub nom., 835 F.2d 1481 (D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988).
For example, in the Board’s recent decision in Hoodview Vending Co., 359 NLRB No. 36 (December 14, 2012), the Board essentially held that firing someone for circulating gossip that someone was going to be fired– i.e.., essentially for “stirring things up”– was unlawful because any discussion of “job security” is “inherently concerted.” In reaching its conclusion, the Board observed (over the dissent of then-Member Hayes) that any employee’s discussion of job security with another employee, even if out of a purely personal concern with no intent to induce group action, is inherently concerted and therefore protected by the Act.
During the Facebook group messaging that took place in Tasker, the Charging Party speculated that the employer may make a returning employee a supervisor and then launched into a tirade of profanities about the employer, ending with a virtual dare to the company to fire her and “[M]ake [her] day. . .” In the Advice Memorandum, Associate General Counsel Kearney stressed that, other than the Charging Party, no current employees took part in that portion of the Facebook group messaging. Kearney went on to expressly distinguish the Board’s decision in Hoodview Vending, and thereby thankfully seems to have somewhat limited the holding of the Board in that case—at least for purposes of deciding when the Acting General Counsel will be authorizing the issuance of complaints. In doing so, Kearney thereby appears to have breathed some new life into the traditional notion that, to be concerted, an employee’s conduct must involve “shared concerns about terms and conditions of employment,” noting that “[t]he Board’s test for concert is whether the activity is engaged in ‘with or on the authority of other employees, and not solely by and on behalf of the employee himself,’” citing to Meyers II, 281 NLRB at 885. A reminder is in order to our readers, however, that things are not always what they appear.