Labor Board Continues its Assault on Facebook Postings - Articles

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Posted by: Christy Gibson on Jan 29, 2013

By Bruce E. Buchanan*

The National Labor Relations Board, in Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 2012), has issued another decision related to Social Media and found the employer violated Section 8(a)(1) of the National Labor Relations Act by discharging five employees.

In this case, a group of employees discussed the poor job performance of other employees. After these conversations, one employee posted a message on her Facebook page about the matter, and solicited responses from her co-workers. Four off-duty employees then posted comments disagreeing with the criticism of other employees’ job performances.  None of these posts originated from the employer’s computers.  An employee, who was the subject of the criticism, complained to the Executive Director about the posts, and at the director’s request, the employee printed out all of the Facebook comments.

The employer discharged the five employees who posted Facebook comments for “bullying and harassment” of a co-worker and violating the employer’s “zero tolerance” policy prohibiting such conduct.

In Meyers Industries I, 268 NLRB 493, 497 (1983), the Board held the discipline or discharge of an employee violates Section 8(a)(1) if the following four elements are established: (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.

The Board found the Facebook posts were clearly concerted because they were undertaken with other employees. The real issue is whether the employees’ Facebook discussions about an employee’s criticisms were untaken for the purpose of “mutual aid or protection.” The dissent says they were not; thus, the discharges were not unlawful.

However, the majority held:

Cole-Rivera’s Facebook communication with her fellow employees, immediately after learning that Cruz-Moore planned to complain about her coworkers to Iglesias, had the clear “mutual aid” objective of preparing her coworkers for a group defense to those complaints. Contrary to our colleague, Cole-Rivera was not required under Relco to discuss this object with coworkers or tell them it was made necessary by Cruz-Moore’s impending visit with Iglesias. Her “mutual aid” object of preparing her coworkers for group action was implicitly manifest from the surrounding circumstances.

The Board also found the employees’ actions did not amount to a form of harassment or bullying. Assuming arguendo the policy covered such comments, the policy could not trump the employees’ Section 7 rights.  Thus, the Board ordered the employees reinstated with full backpay.

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Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C., where he represents individuals and employers in all aspects of immigration law as well as employers in employment/labor law. Mr. Buchanan is past chair of the Tennessee Bar Association's Immigration Law Section. He is a contributor to Employment Law Strategist and writes a blog employer immigration compliance which is at http://blogs.ilw.com/immigrationcompliance/. Mr. Buchanan graduated from Vanderbilt School of Law and Florida State University. He may be reached at bbuchanan@visalaw.com or (615) 345-0266.