In an apparent expansion of the National Labor Relations Board’s traditional view of protected concerted activity, the Board has affirmed an administrative law judge’s finding that an employer violated the National Labor Relations Act by firing five employees for posting Facebook comments in response to a co-worker’s criticism of their job performance. Hispanics United of Buffalo Inc., 359 NLRB No. 37 (Dec. 14, 2012).
Lydia Cruz-Moore and Marianna Cole-Rivera were employed by Hispanics United of Buffalo (“HUD”) to assist victims of domestic violence. Cruz-Moore was often critical of her HUD co-workers. She told Cole-Rivera that she thought her co-workers failed to provide prompt and adequate assistance to clients. On Saturday, October 9, 2011, Cruz-Moore sent a text message to Cole-Rivera stating that she (Cruz-Moore) planned to report her co-workers’ poor job performance to HUD’s Executive Director.
On her personal computer, Cole-Rivera responded to Cruz-Moore’s text message, posting the following message on her Facebook page:
Lydia Cruz, a coworker feels that we don’t help our clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?
Four HUD employees who were off-duty posted comments in reply to Cole-Rivera’s Facebook message. The responses generally objected to Cruz-Moore’s assertion that the employees’ work performance was substandard.
Cruz-Moore saw the comments on Facebook and complained to HUD’s management that she had been slandered and defamed. HUD subsequently terminated Cole-Rivera, along with the other four employees who posted replies on Facebook, for violating the company’s zero-tolerance policy with respect to “bullying and harassment.”
One of the terminated employees filed a charge with the NLRB alleging that HUD violated Section 8(a)(1) of the Act by terminating the five employees in response to their Facebook comments.
Section 8(a)(1) bars employers from interfering, restraining, or coercing employees in the exercise of their rights, guaranteed by Section 7 of the Act, to engage in concerted activity for their mutual aid or protection.
In this case, the Board majority agreed with the Administrative Law Judge (“ALJ”) that the terminated employees were engaged in concerted activity for their mutual aid and protection. The ALJ concluded that the Facebook comments constituted protected activity because the employees “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.”
Member Brian Hayes dissented from the majority’s opinion, arguing that the Facebook comments were not undertaken for the purpose of the terminated employees’ “mutual aid and protection.” Member Hayes noted that there was “no credible evidence that Cole-Rivera made her initial posting with the intent of promoting a group defense, or that her co-workers responded for this purpose.” To the contrary, Member Hayes would characterize the Facebook comments as “shop talk” or “group griping,” which has not traditionally risen to the level of protected activity.
Disagreeing with Member Hayes, the Board majority emphasized the Board’s longstanding position that Section 7 protects employee discussions about job performance. Therefore, because the Facebook comments in this case plainly related to the employees’ job performance, the majority held the employees were “clearly engaged in protected activity in mutual aid of each other’s defense” to Cruz-Moore’s criticisms of their work performance.
The Board concluded the terminations violated Section 8(a)(1) of the Act because the employees were terminated solely as a result of their Facebook postings and those Facebook comments were protected under the Act.
The Board’s decision opens the door to the argument that any discussion among co-workers pertaining to workplace matters could be considered “protected” under the NLRA, regardless of whether such discussion is undertaken to initiate or prepare for group action in the interest of employees. While the Facebook comments posted by the HUD employees in this case certainly communicated mutual disagreement with Cruz-Moore’s criticism of their job performance, they did not suggest or contemplate taking any action in response to this criticism. Yet, the Board concluded that the comments were undertaken for mutual aid and protection. The majority’s ruling under these circumstances demonstrates an expansion of the NLRB’s traditional definition of protected concerted activity.