The National Labor Relations Board (NLRB) ruled that an employer’s termination of five employees over posts to the social media service Facebook violated the National Labor Relations Act (NLRA). In re Hispanics United of Buffalo and Ortiz, Case No. 03-CA-027872, decision and order (NLRB, Dec. 14, 2012). It rejected the employer’s argument that the employees’ posts violated its zero-tolerance policy regarding harassment of other employees. The ruling affirmed an earlier finding by an Administrative Law Judge (ALJ) that the employees’ posts were concerted activity protected by the NLRA.
Marianna Cole-Rivera and Lydia Cruz-Moore were employees of Hispanics United of Buffalo, Inc. (HUB), a nonprofit organization providing assistance to domestic violence victims and others. The two communicated frequently via telephone and text message, and Cruz-Rivera reportedly criticized other coworkers on a regular basis. Cole-Rivera reportedly received a text message from Cruz-Moore on Saturday, October 9, 2010, when neither person was at work, saying that Cruz-Moore intended to report her concerns about other employees’ performance to HUB’s executive director.
After replying to Cruz-Moore via text, Cole-Rivera posted a message to her Facebook page saying that Cruz-Moore felt that other employees “don’t help [their] clients enough,” id. at 2, and asking for other employees’ thoughts. Four HUB employees, all off-duty, responded with comments on the Facebook post. Cruz-Moore complained to the executive director and provided a printout of the post and its comments. The following Monday, the executive director fired Cole-Rivera and the other four employees for violating HUB’s “zero tolerance” policy towards “bullying and harassment.” Id.
The ALJ held that the termination of Cole-Rivera and the other four employees violated NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1). In affirming the ALJ’s decision, the NLRB cited the Meyers cases: In re Meyers Industries, 268 NLRB 493 (1983) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), supplemented 281 NLRB 882 (1986) (Meyers II), aff’d sub. nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987). Meyers I established four elements required to prove a violation of § 8(a)(1):
1. The employee’s conduct was “concerted” as defined by NLRA § 7;
2. The employer knew the activity was concerted;
3. The NLRA protected the concerted activity; and 4. The employer was motivated by the protected, concerted activity in disciplining or terminating the employee. HUB, decision at 2.
The NLRB noted that only elements 1 and 3 were in dispute. It applied a definition of “concerted activity” derived from Meyers I and Meyers II, activity engaged in with other employees that is preparatory to some action by the group. While the NLRB found the medium of communication, Facebook, to be a “novel” form of concerted activity, id. at 1, it found that it was clearly within the definition provided by the prior NLRB decisions. Cole-Rivera’s message served the purpose of preparing other employees for Cruz-Moore’s planned complaints to the executive director regarding their performance, and any response they may have to provide. The NLRB further found that the employees’ concerted activity was protected by the NLRA, which allows “mutual aid of each other’s defense” to criticism. Id. at 3.
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Decision and Order (PDF file), In re Hispanics United of Buffalo and Ortiz, Case No. 03-CA-027872, National Labor Relations Board, December 14, 2012
More Blog Posts:
NLRB Upholds Termination of Employee Over Facebook Posts, but Strikes Down Policy that Allowed the Firing, The New Jersey Employment Law Firm Blog, January 2, 2013
Employee Social Media Rights Addressed by New Jersey Lawmakers, The New Jersey Employment Law Firm Blog, December 21, 2012
NLRB Finds Costco’s Social Media Policy Violates Rights of Union Workers, The New Jersey Employment Law Firm Blog, November 9, 2012