Last week, the National Labor Relations Board (NLRB) in a 3-1 decision upheld an Administrative Law Judge ruling that an employer violated Section 8(a)(1) of the National Labor Relations Act (the Act) when it discharged five employees who complained on Facebook about comments a co-worker had made regarding their job performance.
“Although the employees’ mode of communicating their workplace concerns might be novel, we agree with the judge that the appropriate analytical framework for resolving their discharge allegation has long been settled . . .” the Board stated in Hispanics United of Buffalo, Inc. It then applied doctrine established in 1983 ─ 30 years before “social media” existed ─ in ruling that the terminations violated the Act.
In Hispanics United one of the five discharged employees wrote a post on her own Facebook page alerting the others that their co-worker was making comments critical of their respective job performances. The other four posted comments “generally object[ing] to the assertion that their work performance was substandard.”
The employer then terminated the five employees allegedly for “bullying and harass[ing]” their co-worker and violating the employer’s “zero tolerance” policy.
The Board analyzed the case under the well-settled doctrine established under Meyers Industries, 268 NLRB 493 (1983) and its progeny. As such, the Board evaluated whether: (1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act; (2) the employer knew of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity.
In this regard, only the first and third elements were in dispute: “whether the employees’ Facebook comments constituted concerted activity and, if so, whether that activity was protected by the Act.”
The Board found that there was “no question” that the employees’ conduct was concerted in that their comments were made for ‘the purpose of mutual aid or protection,” and, moreover, they “were taking a first step towards taking group action to defend themselves.”
In addition, “the Facebook comments here fall well within the Act’s protection. The Board has long held that Section 7 protects employee discussions about their job performance, and the Facebook comments plainly centered on that subject.”
Thus, employers should understand that whether employees converse on a shop floor or over electronic media from their homes, their activity will be analyzed according to the same long-standing Board precedent.