By Nelson Cary and Ashley Manfull

As readers of this blog know, in September 2011, Administrative Law Judge Arthur Amchan was the first NLRB judge to issue a ruling on a Facebook-related termination. In Hispanics United of Buffalo, Inc., ALJ Case No. 3-CA-27872, ALJ Amchan ruled that five employees of a non-profit organization were unlawfully terminated for engaging in protected concerted activity based on a series of Facebook posts which were made outside the workplace during non-working time. 

Specifically, a coworker spoke critically of the work performance of several employees, including Marianna Cole-Rivera. The coworker then sent a text to Ms. Cole-Rivera, indicating she intended to discuss her concerns with the Executive Director. Angered by the text message, Ms. Cole-Rivera posted on Facebook that the coworker claimed the employees were not doing their jobs, she had enough of it, and wanted to know how the other employees felt. Four other employees then posted comments responding to the criticisms. After the coworker read the comments and complained, Hispanics United terminated all five employees who posted the Facebook comments, finding the remarks constituted bullying and harassment. 

In a 3-1 decision issued December 14, 2012, but released a few days later, the NLRB affirmed the ALJ’s finding that the employer violated the NLRA when it terminated the five employees based on their Facebook comments. While the NLRB commented that the employees’ mode of communicating workplace concerns “might be novel,” long-established precedent applicable to cases involving discharge for protected, concerted activity was applicable.

Interestingly, in applying that precedent, the NLRB ruled that the group’s comments were concerted protected activity undertaken for their mutual aid and protection even though Ms. Cole-Rivera never told the other employees that their coworker planned to voice her criticisms to the Executive Director. Disagreeing with dissenting Member Brian Hayes (R), whose term has since expired, the NLRB held that the goal of initiating or preparing for group action does not have to be stated explicitly when employees communicate. In this case, the NLRB determined that Ms. Cole-Rivera had the clear objective of enlisting mutual aid to prepare a group defense when she made the Facebook posting, even if that was not communicated to her coworkers. 

Finally, the NLRB acknowledged that employers have legitimate concerns to prevent harassment in the workplace. It held, however, that those concerns do not justify policies that discourage the free exercise of Section 7 rights. This is particularly the case, the NLRB majority reasoned, when employees are reacting to criticisms regarding their job performance which could have an impact on their employment. 

Labor professionals should be aware that the NLRB is likely to continue looking for cases in which to extend existing precedent to employer actions involving employee social media use. As other ALJ decisions involving social media issued earlier this year begin reaching the NLRB, it will have plenty of opportunity to do so.  Before addressing any issue with an employee regarding the use of social media, therefore, labor relations professionals should keep the Hispanics United decision in mind and thoroughly analyze the possibility of protected, concerted activity challenges to employee discipline.