This month, the National Labor Relations Board Division of Advice has issued three Advice Memoranda recommending dismissal of unfair labor practice charges arising out of employee use of Facebook. In all three cases, the Division explained that the misconduct for which the employees were terminated did not constitute protected concerted activity, but were rather more appropriately considered personal gripes outside the protection of the Act.
In JT’s Porch Saloon, Case No. 13-CA-46689 (July 7, 2011), a bartender was fired after posting comments in a Facebook conversation with his sister expressing his hope that his employer’s "redneck" customers would "choke on glass as they drove home drunk." None of his co-workers participated in the Facebook conversation, but days later, his employer terminated him (ironically, perhaps, via Facebook message).
In Wal-Mart, Case No. 17-CA-25030 (July 19, 2011), an employee was terminated after he took to his Facebook page to express frustration and insult his Assistant Manager. Among other things, he called the Assistant Manager a "puta" and declared that her criticisms of his work were "retarded." He concluded his manifesto with the exclamation that Walmart could "kiss [his] royal white ass." Although co-workers responded to his posts, they were expressions of individual support — not group action. For example, one wrote: "hang in there."
Finally, in Martin House, Case No. 34-CA-12950 (July 19, 2011), a Recovery Specialist at a non-profit residential facility for the homeless was terminated for posting inappropriate comments about residents. One night, while on the clock, the employee posted a series of comments about how "spooky" the institution was, the "voices" her clients hear, and how they would "just pop meds." Interestingly, none of the participants in the Facebook conversation were co-workers — and indeed, none of her co-workers were even Facebook friends of the employee.
In analyzing all these cases, the Division of Advice reiterated the appropriate Board standards for finding conduct to be protected concerted activity. Stated most thoroughly in the Wal-Mart memo:
An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.” Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted
None of the conduct described in the three cases above met that standard. The employee in Wal-Mart was clearly complaining about his own relationship with the Assistant Manager, which seemed to be reinforced by the comments of his co-workers. The employee in JT’s Porch was simply venting his personal frustration at work by making derogatory remarks about his customers. Similarly, the employee in Martin House was making insensitive — if less offensive — comments about the employer’s clientele. Accordingly, the Division found this conduct was not protected, and therefore that the employees’ terminations did not violate the Act.
In an earlier post on the Board’s developing line of cases on Social Media, I noted that a trend was clearly emerging on this issue:
The Board will consider "protected" any social media postings which are either made on behalf of other employees or made with the object of inducing or preparing for group action. This is a broad, and currently expanding, standard.
For more on how the Board has been approaching these cases, you can also check out the chapter I contributed to the Thomson publication "Think Before You Click: Strategies for Managing Social Media in the Workplace" which just hit electronic bookshelves last week.