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Board 3-1 Finds Facebook Firings Unlawful; Hayes Argues NLRA Didn't Protect ‘Venting'

Wednesday, December 26, 2012

Hispanics United of Buffalo Inc., 359 N.L.R.B. No. 37, 12/14/12 [released 12/19/12]

Key Holding: ALJ properly found illegal the firing of five employees who used Facebook to discuss their responses to a co-worker's criticism of their work.

Key Takeaway: Board held 3-1 workers responding to solicitation of views made “common cause” and engaged in protected concerted activity.

By Lawrence E. Dubé  

The National Labor Relations Board Dec. 14 decided 3-1 that an administrative law judge properly found a Buffalo, N.Y., nonprofit violated federal labor law 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 N.L.R.B. No. 37, 12/14/12 [released 12/19/12]).

NLRB Chairman Mark Gaston Pearce and Members Richard F. Griffin and Sharon Block wrote that they were applying established principles under the National Labor Relations Act in finding that Hispanics United of Buffalo Inc. fired Marianna Cole-Rivera and four co-workers for their communications on Facebook. Cole-Rivera solicited the employees' response to another employee's criticism of their performance and the employees “made common cause” with Cole-Rivera by posting their comments, the board found.

Member Brian E. Hayes, writing shortly before his term on the board ended Dec. 16, disagreed. Arguing that “shop talk” is not always concerted activity under Section 7 of the NLRA, Hayes said NLRB's acting general counsel failed to show the employees were acting for their mutual aid or protection.

Firings Followed Facebook Discussions.

According to the decision, Lydia Cruz-Moore worked with Cole-Rivera and other employees, to assist victims of domestic violence.

Cole-Rivera testified that Cruz-Moore was often critical of HUB employees, accusing some of keeping clients waiting or otherwise not doing their jobs.

The board said in October 2010, after Cruz-Moore announced her intention to take her complaints to HUB's executive director, Cole-Rivera posted a Saturday morning message on her personal Facebook page, stating “Lydia Cruz, a coworker feels that we don't help our clients enough at HUB. I about had it! My fellow coworkers how do u feel?”

Four employees added comments to the Facebook page, and the board said the postings “generally objected to the assertion that their work performance was substandard.”

Cruz-Moore posted her own reply on the Facbook page, stating “stop with ur lies about me.” She then complained to HUB's executive director, Lourdes Iglesias, who obtained a printout of the Facebook comments and fired Cole-River and her four co-workers for “bullying and harassment” of Cruz-Moore in an alleged violation of HUB's “zero tolerance” policy prohibiting such conduct.

ALJ Found Interference With Employee Rights.

Acting on an unfair labor practice charge filed by Carlos Ortiz, one of the discharged workers, an NLRB regional director issued a complaint alleging that HUB fired the employees in violation of Section 8(a)(1) of the NLRA.

Section 8(a)(1) bars employers from interfering, restraining, or coercing employees in the exercise of their right, guaranteed by Section 7 of the act, to engage in concerted activity for their mutual aid or protection.

An administrative law judge sustained the unfair labor practice allegation, and HUB appealed the ruling to the board.

Majority Says 'No Question' Action Concerted.

Pearce, Griffin, and Block said the “appropriate analytical framework” for resolving cases such as the Buffalo firings is provided by Meyers Industries, 268 N.L.R.B. 493, 123 LRRM 1137 (1983), and later cases. In Meyers, they said, NLRB determined that an employer's discipline of a worker violates Section 8(a)(1) of the NLRA if “(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 majority said “there should be no question” the HUB employees were engaged in concerted activity that was, as required by Section 7, for the “purpose of mutual aid or protection.”

Cole-Rivera began the Facebook exchange by stating she had “about had it” with Cruz-Moore's criticisms, and solicited the other employees to respond. The four co-workers “made common cause” with Cole-Rivera and thereby engaged in Section 7 activity, the board said. In addition, they wrote, the ALJ properly found that the employees' activity should be considered concerted because the workers were “taking a first step towards group action to defend themselves” in anticipation that Cruz-Moore would eventually take her criticism to HUB management.

Activity Protected, Not Harassment.

The board said in addition to being concerted activity under the NLRA, “the Facebook comments here fall well within the Act's protection.”

HUB did not argue that the employees lost the protection of the act by communicating on Facebook. Instead, the board said, the company argued that the employees engaged in harassment and bullying of Cruz-Moore, but the board disagreed.

Finding the Facebook comments could not reasonably be viewed as a form of harassment or bullying prohibited by HUB policies, and the employer could not justify its personnel actions based on Cruz-Moore's “subjective claim” that she was offended by the other employees' remarks, the board said the ALJ properly concluded the employee discharges violated Section 8(a)(1) of the NLRA.

Dissent Sees Unprotected Griping.

Hayes dissented. Agreeing the case was controlled by Meyers Industries and its progeny, he wrote, “Not all shop talk among employees--whether in person, telephonic, or on the internet--is concerted within the meaning of Section 7, even if it focuses on a condition of employment.”

Calling the comments by HUB employees “group griping,” the dissent said it was not protected “because there is insufficient evidence that either the original posting or the views expressed in response to it were for mutual aid or protection.”

Hayes said employees sharing a common viewpoint are not engaged in activity for their mutual aid or protection, but employees joining in a common cause are engaged in such activity, which is protected by the NLRA.

Finding that the five employees who discussed Cruz-Moore on Facebook were “simply venting to one another,” the dissenting board member said there was “no credible evidence that Cole-Rivera made her initial posting with the intent of promoting a group defense, or that her coworkers responded for this purpose.”

“Accordingly,” Hayes said, “I dissent from their adoption of the judge's finding that the employees were engaged in concerted activity for mutual aid and protection.”

By Lawrence E. Dubé  

Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-936sfg.

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