Although this column usually focuses on recent employment discrimination cases, employers and their counsel should be equally aware of recent decisions of the National Labor Relations Board that could impact workplace decisions. Of particular note is a recent board decision in In re Hispanics United of Buffalo, No. 03-CA-027872 (Dec. 14 2012), in which the board found that employees’ Facebook postings in response to a co-worker’s criticism of their performance was “protected activity” under Section 8(a)(1) of the National Labor Relations Act — and that their termination for the postings violated the act.

One employee critical of her co-workers

Mariana Cole-Rivera and Lydia Cruz-Moore were co-workers employed by Hispanics United, an agency that provides aid to victims of domestic violence in the Buffalo, N.Y., area. The two frequently communicated by various methods and a common topic was Cruz-Moore’s criticism of their co-workers for not doing enough to help their clients. This criticism reached a crescendo on a Saturday afternoon when Cruz-Moore sent a text message to Cole-Rivera that she intended to discuss her concerns with their supervisor when they returned to work the following Monday.

Cole-Rivera then posted a Facebook message (from her home computer) to her co-workers that Cruz-Moore “feels we don’t help our clients … I about had it! My fellow coworkers how do u feel?” Not surprisingly, four off-duty employees objected to Cruz-Moore’s assessment of their performance. The postings then moved to a discussion of an upcoming party. Cruz-Moore responded angrily on the Facebook chain, claiming that she had been defamed. When she brought this to the attention of her supervisor, she was asked to print out the postings. Cruz-Moore did so and the employees were subsequently terminated for violating Hispanics United’s anti-harassment and bullying policy.

Charge filed under the NLRA

The terminated employees filed an unfair labor practice charge with the NLRB, claiming that Hispanics United had violated the NLRA by terminating them for engaging in “concerted activity” under the act. A hearing was held before an administrative law judge, who found a violation and ordered that the employees be reinstated to their positions with full lost wages. Hispanics United appealed this decision to the full board.

Concerted and protected activity

The board began its discussion by setting out the four elements of a violation of Section 8(a)(1) of the act: (1) the activity engaged in must be “concerted” as defined by the act; (2) the employer must know of the concerted nature of the activity; (3) the concerted activity must be “protected” by the act; and (4) the employees must be terminated for the activity at issue. Only the first and third elements were at issue in Hispanics United.

The board first considered whether the employees’ Facebook responses rose to the level of “concerted activity.” “Concerted” activity has been defined as “those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” The definition applies to employees in both union and non-union workplaces.

Group action found

The board found that when Cole-Rivera asked her co-workers to comment on Cruz-Moore’s criticism and they responded, the co-workers “made common cause” with her. The board also found that the five 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.”

It must be noted, however, that Cole-Rivera’s posting to her co-workers did not mention that Cruz-Moore intended to speak with their supervisor (even though Cruz-Moore had told Cole-Rivera that she would). The board, therefore, based its finding on what the employees may have believed about Cruz-Moore’s intentions. The board addressed this issue by finding that, in reaching out to her co-workers, Cole-Rivera “had the clear mutual aid objective of preparing her co-workers for a group defense to those complaints.” This was, according to the board, “implicitly manifest from surrounding circumstances.”

Discussions of job performance protected

The board also found that the concerted activity (that is, the Facebook postings) was protected because the act “protects employee discussions about their job performance.” Both the ALJ and the board rejected Hispanics United’s argument that the employee responses were unprotected harassment and bullying of Cruz-Moore. In doing so, the board found that Hispanics United relied “solely on Cruz-Moore’s subjective claim (in a text message) that she felt offended by the Facebook postings. Such a wholly subjective notion of harassment is unknown to the act … and discipline imposed on this basis violates Section 8(a)(1).”

Dissent finds complaints to be ‘griping’

Board member Brian Hayes strongly dissented to the board’s decision on the basis that, while the Facebook postings may have been “concerted activity,” they were not for the employees’ “mutual aid and protection.” Rather, because the postings did not suggest or “implicitly contemplate doing anything in response to the criticism,” they were little more than “group griping.” Hayes drew a distinction between what he considered to be “joining a common cause” (which would be protected) and “sharing a common viewpoint” (which would not).

Hispanics United highlights that the NLRA needs to be considered by employers even when making employment decisions in non-union workplaces — particularly when the decision is being made based upon the nature of interactions between co-workers or between employees and management. This is particularly so when the interaction takes place at work — but this case illustrates that communications outside of the workplace can rise to the level of both “concerted” and “protected” activity under the act even when it just relates to the work environment. •

Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.