On July 7 and 19, 2011, the NLRB’s Office of the General Counsel issued a series of three advice memoranda recommending the dismissal of unfair labor practice charges filed by employees who were disciplined for comments made on Facebook. In each of these charges, the employee alleged that their discipline violated Section 8(a)(1) of the National Labor Relations Act, but in each the NLRB’s General Counsel’s Office concluded that there was insufficient evidence that the employee engaged in concerted activity.
In the first Memorandum, JT’s Porch Saloon & Eatery, Ltd., the employee was a bartender who took issue with and complained to another bartender about the employer’s tip policy. Several months later he engaged in a conversation on Facebook with a family member who had asked how his night at work went. He responded with a variety of complaints about not having had a raise and the tip policy. He also called the bar’s customer’s "rednecks" and said that he hoped they "choked on glass as they drove home drunk." He didn’t discuss this posting with any of his co-workers either before or after posting it. Not surprisingly, when one of the managers discovered the post, he was fired. The NLRB’s General Counsel concluded that the Facebook posting did not constitute concerted activity. Although the posting addressed terms and conditions of employment, there was no evidence that the posting was a "logical outgrowth of concerns expressed by the employees collectively." Instead, the charging party’s comment was in response to a family member’s innocuous question about how his night of work had gone. The Memorandum also noted that there had been no efforts to initiate group action over the tipping policy or the lack of raises and no effort to make these complaints known to management. Interestingly, the Memorandum does not address — because it did not need to — whether the comments about the bars customers might have separately supported the charging party’s discipline.
The second Memorandum, Martin House, in my mind addressed an even simpler set of facts. In this charge, the employer was a non-profit residential facility for homeless people, many of whom suffer from mental illness and substance abuse. While at work, the charging party engaged in a Facebook conversation with two friends, neither of whom were co-workers. In the conversation, she made fun of and was insensitive to the circumstances of the employer’s client base. A former client of the facility, who was a "friend" of the charging party on Facebook, saw the charging party’s comments and called the employer to report her concerns. As a result, the charging party was fired. Again, the General Counsel’s office found no concerted activity. Similar to the facts in JT’s Porch Saloon, the charging party was merely communicating with personal friends about what was happening at work. The charging party did not discuss her posts with co-workers and none of her co-workers responded to her posts. In fact, the charging party’s comments here were even further removed from work because there was no discussion of the terms and conditions of her employment.
Finally, in Wal-Mart, after an interaction with an assistant manager regarding misplaced and/or mispriced products, the charging party wrote "Wuck Fal-Mart" on her Facebook page. After a couple of co-workers responded, the charging party then began a profane rant about the incident that gave rise to her original post. The charging party also said that two other co-workers expressed support for him. After another co-worker brought the post to management’s attention, the charging party was disciplined, but not terminated. The General Counsel’s Office again concluded that there was insufficient evidence that the charging party had engaged in concerted activity. Instead, he noted that the charging party’s Facebook postings were simply an expression of an individual gripe. "They contain no language suggesting the charging party sought to initiate or induce co-workers to engage in group action; rather they express only his frustration regarding his individual dispute" with the assistant manager. The General Counsel’s then went on to analyze the responses to the charging party’s postings, which suggested that two of the co-workers found the charging party’s initial posting amusing. The third co-worker admitted telling the charging party to "hang in there." The General Counsel’s Office interpreted this remark as merely showing that she viewed the postings as a plea for emotional support.
Little by little, the Board is providing employers with guidance on how to address disciplinary issues relating to Facebook postings. It seems clear from these three Memoranda that the Board should seek dismissal of any charge that does not show that the charging party’s Facebook postings demonstrate that he or she:
- is acting with or on the authority of other employees;
- is seeking to initiate, induce, or prepare for group action;
- is bringing truly group complaints to the attention of management.
On the other hand, comments made solely by and on behalf of the employee him or herself are not concerted. In this regard, however, it is clear that the Board will look to any co-worker responses to see whether they interpreted the charging party’s statements as being individual gripes or an effort at concerted activity. Finally, it is clear that the Board will also look to whether the Facebook comments are a logical outgrowth of concerns expressed by employees collective. Therefore, employers contemplating discipline of an employee for social media comments must take all of the circumstances into consideration and cannot focus solely on the employee’s comment in a vacuum.
(Hat tip to Labor Relations Today Blog)