Dawnmarie Souza, an employee of American Medical Response of Connecticut, was terminated for referring to someone as a “17” in a Facebook status. While this may seem outlandish, the “someone” Souza was referring to was her boss and the “17” was company jargon for a mental patient. The status, wherein Souza also called her boss a “scumbag,” prompted numerous responses from other employees of the company who also shared their comments regarding the supervisor. Souza was suspended and subsequently terminated for her Facebook posts because they violated the Employer’s blogging and Internet policy.FN2 The Acting General Counsel (“AGC”) for the National Labor Relations Board (“NLRB”), in turn, filed an unfair labor practice charge against the Employer, finding that the discharge of the employee for the Facebook post was unlawful because it violated the employee’s right to engage in “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA”).FN3 While the case was settled before it could be heard by the Board, it is only the tip of the iceberg in a slew of social media cases the Board will confront as a result of the popularity of networking sites like Facebook and Twitter. The NLRB has long protected the rights of employees to make negative remarks about working conditions and supervisors, recognizing that such activities are a facet of concerted activity. However, this precedent was developed prior to the onset of the social media frenzy, which has raised the question of what an employer may reprimand its employees for. May an employee disparage their employer on Facebook, possibly exposing the employer to liability, and argue that this is “concerted activity”? Lafe Solomon, the AGC of the NLRB, has said these social media posts are no different from those conversations taking place around the water cooler.FN4 However, this stance does not account for the pervasiveness of social media commentary. What was once an opinion shared at the lunch table amongst employees now has the potential to spread to hundreds of people, the majority of whom are presumably not employees, with a single mouse click. Originally enacted during the New Deal era to protect the rights of employees to unionize,FN5 the NLRA is thus far being applied arbitrarily to social media cases in a way that is too restrictive on employers. As union presence diminishes, some corporate officials assert that the NLRB is intervening in the social media context in an attempt to expand its power in the workplace.FN6 The popularity and universal accessibility to social media has changed the context of labor relations and this change should be considered when applying provisions of the NLRA to the 21st century workplace. This note will first address the framework of the NLRB. It will then address the traditional rules for protected concerted activity determinations, and subsequently examine the NLRB’s application of these traditional rules to the social media context. Next it will discuss inconsistencies and problems resulting from this application. This note will conclude with a proposal for applying heightened scrutiny to find protected, concerted activity and a balancing test looking to the totality of the circumstances.
Framework of the National Labor Relations Board
The NLRB is an independent federal agency with exclusive jurisdiction over unfair labor practice charges under the NLRA. The NLRB “protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.”FN7 Among other undertakings, the NLRB “acts to prevent and remedy unfair labor practices committed by private sector employers and unions.”FN8 The Board of the NLRB (“the Board”) predominantly “acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings.”FN9 The General Counsel is “independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.”FN10 Once an unfair labor practice charge is filed with a regional office, a field examiner investigates the charge and submits evidence to the Regional Director, who evaluates the findings and issues a formal complaint if he or she finds the evidence sufficient to support the charge. Once a formal complaint is issued, the NLRB prosecutes the complaint in front of an Administrative Law Judge (“ALJ”).FN11 If neither party files an exception to the ALJ’s decision within twenty days, the findings automatically become the decision and order of the Board; if exceptions are filed, the Board reviews the case.FN12
Protected Activity Under the National Labor Relations Act
An employer may fire an employee “for good cause, bad cause, or no cause at all, without violating the Act as long as his motivation is not anti-union discrimination and the discharge does not punish activities protected by the Act.”FN13 However, both union and non-union employers are at risk of facing unfair labor practice charges under Section 8 of the NLRA if they terminate or discipline an employee based on social media activity that the Board deems “protected concerted activity.” In pertinent part, Section 7 of the NLRA provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”FN14 Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7].”FN15 The discipline or discharge of an employee violates Section 8(a)(1) if the following four elements are established:(1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act; (2) the employer knew of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity.FN16 “In order for employee conduct to fall within the ambit of Section 7, it must both be concerted and engaged in for the purpose of ‘mutual aid or protection.’”FN17 Under the Board’s test for concerted activity found in the Meyers cases, the activity must be “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”FN18 Included in this definition are “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.”FN19 The Board and Third Circuit have held that: A conversation may constitute concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of employees.FN20 The Board has found that “efforts to invoke the protection of statutes benefiting employees are efforts engaged in for the purpose of ‘mutual aid or protection.’”FN21 Nevertheless, subject matter alone “is not enough to find concert.”FN22 However, protection of the Act is not absolute. An employee who is engaged in concerted protected activity and would otherwise “fall within the ambit of Section 7”FN23 can lose this protection. This loss occurs in two situations: when an employee has made public outbursts against a supervisor and when an employee has purportedly made negative remarks about an employer or its product to third parties.FN24 When an employee has made public outbursts against a supervisor, the Atlantic Steel standard is generally applied. In Atlantic Steel, the Board found that “even an employee who is engaged in concerted protected activity can, by opprobrious conduct, lose the protection of the Act.”FN25 When an employee “has made allegedly disparaging comments about an employer or its product in the context of appeals to outside or third parties,” the Jefferson Standard is generally applied.FN26
The Board’s Application of “Concerted Activity” Rules
Labeling social media as “the new water cooler” and acknowledging the historical protection federal law has afforded the rights of employees to discuss work-related matters, Board Chairman Mark Pearce stated the Board is merely “applying traditional rules to a new technology.”FN27 Thus far, the Board has only decided two unlawful discharge cases involving social media. In Knauz BMW, the Board ruled on its first unlawful discharge allegation involving Facebook posts. The Facebook posts in Knauz involved two separate incidents, the first of which contained pictures accompanied by sarcastic and critical remarks of the inexpensive food that was served at a marketing event for a new BMW model.FN28 The second incident took place at an adjacent dealership, also owned by the employer, where a customer’s child was sitting in the driver’s seat of a vehicle when the vehicle accelerated over the customer’s foot and into a pond. The employee posted pictures with mocking captions of the accident on his Facebook page. The Board agreed with the ALJ’s finding that the employee was discharged solely for his posts about the accident, adopted the holding that these posts did not amount to protected concerted activity, and thus held that the discharge was lawful.FN29 The Board declined to address whether the Facebook posts about the sales event were protected. In Hispanics United, Marianna Cole-Rivera and Lydia Cruz-Moore were employees at Hispanics United of Buffalo, Inc., a nonprofit where the co-workers assisted victims of domestic violence. After Cruz-Moore sent Cole-Riviera a text message indicating an intention to discuss her criticisms of employee performance with the Executive Director of the company, Cole-Rivera posted a Facebook status from her home computer that read, “Lydia Cruz, a coworker feels that we don’t help our clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?”FN30 Four off-duty employees commented on the status voicing their objection to Cruz-Moore’s criticism that their work performance was subpar. Cruz-Moore complained to the Executive Director that she had been defamed and slandered. Cole-Rivera and her four coworkers were subsequently discharged because their comments, deemed “bullying and harassment” of a coworker, were in violation of the company’s “zero tolerance” policy proscribing such conduct. The Board found that “although the employees’ mode of communicating their workplace concerns might be novel…the appropriate analytical framework for resolving their discharge allegations has long been settled under Meyers Industries and its progeny.”FN31 Applying Meyers, the Board held that the discharge of the five employees was an 8(a)(1) violation; by responding with comments of disapproval to Cole-Rivera’s solicitation, the coworkers “made common cause with her, and together their actions were concerted within the definition of Meyers I, because they were undertaken ‘with…other employees.’”FN32 The employees’ actions were also found concerted under Meyers II because they “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.”FN33 Although the status did not notify employees that Cruz-Moore was going to speak with the Executive Director, the Board reiterated that the “object or goal of initiating, inducing, or preparing for group action does not have to be stated explicitly when employees communicate” and that “even absent an express announcement about the object of an employee’s activity, ‘a concerted objective may be inferred from a variety of circumstances in which employees might discuss or seek to address concerns about working conditions.’”FN34
Cases Before the General Counsel
Because Hispanics United and Knauz BMW mark the Board’s only application of the NLRA to unlawful discharge cases involving social media, precedent is extremely limited. Although this limitation suggests uncertainty as to how the Board will decide future social media discharge cases, policy guidance reports issued by the AGC provide some insight. While the AGC’s decisions are not binding authority like those issued by the Board, recently decided cases indicate it is probable that the Board will subscribe to the AGC’s stance on social media cases. In his August 2011 report, AGC Lafe Solomon addressed in part “emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings.”FN35 This note will first address cases where the AGC found concerted activity and then cases where concerted activity was not found.
Concerted Activity Found
The AGC found that the Facebook discussion between employees in Hispanics United was a “textbook example of concerted activity” under the Meyers cases “even though it transpired on a social network platform.”FN36 Furthermore, the AGC made the broad assertion that “[t]his finding of protected activity does not change if employee statements were communicated via the internet” but did not offer a justification for this conclusion.FN37 The AGC also found protected concerted activity in American Medical Response of Connecticut (“AMR”), mentioned in the introduction of this note. In finding that Souza’s discussion of supervisory actions with coworkers in her Facebook post was protected activity, the AGC noted that “[i]t is well established that the protest of supervisory actions is protected conduct under Section 7.”FN38 Applying the Atlantic Steel standard, the AGC also determined that Souza did not lose the Act’s protection as a result of her comments. In his analysis of Knauz BMW, the AGC found that the photographs and commentary criticizing the sales event “were part of a course of protected, concerted conduct related to the employees’ concerns over commissions and were not disparaging of the Employer’s product or so ‘egregious’ as to lose the Act’s protection.”FN39 The Report stated that the employee took the photos to “capture his coworker’s frustration”, that when he posted them on Facebook he was expressing “the sentiment of the group,” and this activity was therefore “a direct outgrowth of the earlier discussion among the salespeople” after the meeting with management.FN40 In Triple Play Sports Bar (“Triple Play”), the ALJ found that an Employer’s discharge of employees who participated in a Facebook conversation regarding the Employer’s tax withholding practices was unlawful. After discovering that several employees owed state income taxes related to earnings at Triple Play Sports Bar, an employee requested to discuss the issue at an upcoming employee meeting. Subsequently, an employee “liked” the status of a former employee stating the employer could not do paperwork properly. Two other employees made similar comments; one stated she requested to discuss the issue at the next meeting, and another referred to one of the owners as “an ass hole.” The AGC found that the conversation related to a terms and condition of employment, namely the administration of tax withholdings, and that the conversation embodied “truly group complaints.”FN41
Concerted Activity Not Found
Arizona Daily Star involved a reporter who was discharged for posting unprofessional tweets from a work-related Twitter account that included offensive statements about homicides relating to his public safety beat, such as “What?!? No overnight homicide? WTF? You’re slacking Tucson.”FN42 The AGC found that this activity was not concerted or protected, as it did not involve terms and conditions of employment or attempt to involve other employees in employment issues. JT’s Porch Saloon & Eatery (“JT’s Saloon”) involved a bartender who was fired after posting a Facebook status about his Employer’s tipping policy; the employee also referred to the customers as “rednecks” and stated that he hoped they would choke on glass as they drove home drunk.FN43 Months prior to the posting, the terminated employee discussed the policy with a coworker, but neither complained to management. Though acknowledging that the status addressed the bartender’s terms and conditions of employment, the AGC held the activity was not concerted because no employees responded to the post, nor did the bartender discuss it with his coworkers. The AGC was unconvinced that the “conversation” grew out of the employee’s conversation with his coworker months prior.FN44 In Martin House, Inc., a recovery specialist at a residential facility for the homeless was fired after making callous remarks in a Facebook status about the residents, many of whom were mentally ill or had substance abuse problems. Finding this conduct was not protected concerted activity, the AGC emphasized that none of the employee’s coworkers responded to the status and that she was not seeking to induce group action.FN45 The AGC held in Rural Metro that an employee was not engaged in concerted activity where she posted messages on a Senator’s Facebook page that allegedly violated the Business Conduct policy of her employer. The employee worked as a dispatcher for a company that provided medical transportation and fire protection services. The employee’s post stated that Rural Metro was the “cheapest service in town” and paid its employees $2 less than the national average.FN46 Because the employee did not discuss the post with other employees, was not attempting to take employee complaints to management, and there had been no employee meeting or undertakings to start group action, the AGC found that this was not concerted activity.FN47 After being reprimanded by an Assistant Manager, the employee in Wal-Mart posted on his Facebook page, “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!”FN48 One coworker responded with approval of this post and another made a supportive remark. The AGC did not find concerted activity because the posts did not suggest the employee “sought to initiate or induce coworkers to engage in group action; rather they express[ed] only his frustration regarding his individual dispute with the Assistant Manger” and were merely “an expression of an individual gripe.”FN49 The AGC found that the responses of coworkers did not indicate they had interpreted the posts as an attempt at inducing group action.
Differentiating Social Media From Traditional Labor Contexts
The traditional rules do not account for the characteristics of social media that differ greatly from other labor contexts; this disparity will likely increase an employer’s exposure to liability and result in arbitrary rulings, making it increasingly difficult for employers to know when they may lawfully terminate an employee for disparaging remarks made on social media websites. Inconsistent decisions will also create uncertainty amongst practitioners responsible for representing employees or employers. Contexts in which concerted activity has generally been found to occur, such as conversations among employees or at planned gatherings, vary drastically from communication via social media. Due to its accessibility, posts on social media sites are likely to permeate throughout the Internet, reaching a far wider audience than traditional forms of discussion. A Facebook status has the potential to be viewed by hundreds of online “friends” and even individuals an employee does not know, most of whom are unlikely to be coworkers. This reach is far different from a meeting or conversation among employees, in which the discussion is limited to those present. Even compared with hand billing or picketing situations, this expression does not have nearly the same potential to spread as extensively as discussion occurring online. Those who witness communication from picketing or hand billing do so in a more limited—and presumably more organized—context, in which it is likely easier to understand the dispute and the dispute receives more accurate information. Those who read a “status” or “tweet” are less likely to be apprised of all facts or circumstances of a situation and are susceptible to reading various responses to such posts, many from people who may not have knowledge of a given situation. Permanency is also a characteristic of online activity that distinguishes it from activity in a traditional labor context. Traditional gatherings are generally finite, while an online discussion does not dissipate; once a remark is posted online, it remains on the Internet unless it is deleted.
Repercussions Faced by Employers
As a result of the foregoing characteristics, employers are exposed to greater liability and risk of loss from employee social media activity. Such posts “may create liability for employers for security law violations, consumer law violations, infringement, discrimination, conspiracy, privacy violations, defamation, negligence, breach of contract, or other matters.”FN50 Due in part to the potential of online activity to reach far more people, a company also faces losing business to a greater extent from online “concerted activity” than it does from traditional forms of such activity. If the employees in Hispanics United worked for an insurance company rather than a nonprofit organization, their online activity could foreseeably result in lost business, as potential customers viewing the post would be unlikely to purchase insurance from a company whose employees are criticizing one another for offering substandard services. Concerted activity on Facebook is far more likely to attract the attention of potential or existing customers than a conversation at the water cooler, an occurrence unlikely to receive public attention.
Group Action or Griping?
Traditional rules do not consider the informal nature of social media, where it is commonplace for individuals to use the web as an outlet of expression. This difference has resulted in the Board finding that activity has been engaged in for “mutual aid or protection”, when it is likely mere griping. While traditional forms of concerted activity such as picketing often require some element of organization or planning, posting on a social media site can be done quickly with little thought or intent. To find that an employee is attempting to call his coworkers to group action, when in actuality he is complaining, is to impute a formality to social media sites that they do not possess. An employee who tweets that her boss is a jerk is not necessarily seeking to engage in concerted activity for “mutual aid and protection.” Nevertheless, when the employee is discharged because of her tweets, “concerted activity” presents a convenient defense or avenue for reinstatement. Application of the traditional rules in this context is likely to afford the protections of Section 7 to those who only sought to vent online. The Board and AGC have been too lax in finding “mutual aid and protection” in social media cases. That the subject matter of an online discussion is a condition of employment is not enough to find concert.FN51 Yet, under the current trend, the Board could foreseeably find any online conversation between employees to be protected so long as it relates to the interest of employees. In Hispanics United, the Board found that the employees were taking initial steps toward group action to defend themselves against possible accusations even though the employees were unaware of Cruz-Moore’s threats to bring her complaints to management. Similarly, there was nothing indicating that the employee in AMR posted the status with intent to engage in group action. Other comments by employees merely criticized the supervisor and no group action or defense was mentioned. AMR is also inconsistent with the holding in Wal-Mart, as the AGC found the post there to be merely an individual gripe with a supervisor.
Emphasis on Coworker Response
The Board and AGC place undue emphasis on whether coworkers respond to an employee’s post; this emphasis does not consider the ease with which a person can click the “like” button. A coworker that expresses agreement with the status of an employee simply by typing a few words in the “comment” box has unknowingly engaged in concerted group activity, whether he intended to or not. Current application ignores the informality of social networks and does not account for the actual intent of the employees. Did the employees in Triple Play intend to engage in concerted activity when they discussed their tax issues any more than the tip-deprived bartender in JT’s Saloon? It does not appear that they did. Additionally, the AGC’s heavy reliance on coworker response is too attenuated and leaves too much to chance. An employee who happens to post a Facebook status when five of her coworkers are online may fall within the ambit of Section 7 if her coworkers comment on the post, but if that same employee posted the status hours later and none of her coworkers were online, she may be out of luck. In Triple Play, discussion of taxes was concerted activity because two other employees participated in the Facebook conversation and an employee who happened to have recently mentioned the issue to her boss referenced it in the discussion. However, the bartender’s Facebook post about his Employer’s tipping policy in JT’s Saloon was not concerted activity, in part because no one responded to his status and his prior conversation with his coworker was not sufficiently recent. Would it have made a difference if his coworkers commented and indicated their agreement? Were his remarks that he wished his customers would “choke on glass” simply more offensive to the AGC than calling his boss “an ass hole” like the employee in Triple Play?
Modifying the Meyers Application
While the NLRB should continue to determine whether an employee has engaged in protected concerted activity under the Meyers line of cases, certain modifications should be made in applying the test in the social media context. The NLRB should adopt an approach that places less emphasis on whether co-workers of a “posting” employee respond to the post; it should also place greater weight on the circumstances outside of the online discussion. The NLRB should inquire further into whether the communication was truly intended to promote group action or whether it was simply “group griping.” Moreover, a heightened standard of scrutiny should be applied when determining whether or not online activity was for mutual aid and protection. Whether a coworker “likes” or responds to an employee’s post should not be dispositive of whether activity is concerted. The mere fact that many coworkers have responded to a post should not weigh heavily toward a finding that this was concerted activity. Alternatively, when an employee has posted something clearly designed to induce group action but his coworkers have not responded, it should not follow that this action is not protected. While many coworkers responding to a post expressing agreement or stating their own qualms may be concerted in that it is group activity, more should be required to be shown to prove that this was undertaken for “mutual aid and protection.” In conducting its investigation after a charge is filed, the field examiner should take extra caution to gather evidence and take affidavits regarding communication occurring outside of the online discussion. The NLRB should carefully scrutinize the occurrences and communication pertaining to the online discussion leading up to the posting. This attention to facts outside of the discussion will help protect the interests of those employees truly engaging in concerted activity while also protecting the interests of employers where an employee’s conduct is mere griping. Focus should be placed on whether communication occurring offline—in conjunction with that online—is seen as preparing for group action. Because of the great risk of liability an employer is exposed to from an employee’s posts online, the NLRB should apply heightened scrutiny to an employee’s claim that their online activity was for mutual aid and protection. Coworkers’ online expression should not be found to be protected simply because they have discussed the same complaints in the break room; evidence must be offered that conversations taking place around the online communication had the objective of preparing for group action. “There is a meaningful distinction between sharing a common viewpoint and joining in a common cause. Only the latter involves group action for mutual aid and protection.”FN52 Where there is no evidence that employees have at least discussed engaging in group activity or bringing their concerns to management prior to an online post, the activity should not be protected. The employee should be required to establish a strong nexus between the online discussion and group action. In determining whether or not protected concerted activity exists, the NLRB should look to the totality of the circumstances surrounding the online post, including the nature of the post; the extent of liability the employer could be potentially exposed to as a result of it; alternative means the employee could have used to promote group activity; and whether the posting employee has made efforts to clearly show that the online post was to promote group action. These findings should be viewed in the light most favorable to the employer due to the great liability the employer could potentially face. While the employee also faces great repercussions in the possibility of losing their job and livelihood, the fact that it was the employee’s decision—and not the employer’s—to use an online public forum to express complaints instead of privately doing so, suggests placing a heavier burden on the employee. The NLRB should weigh the interests of the employer with that of the employee before deciding whether or not activity is protected.
It is imperative that the NLRB adapts its traditional rules regarding concerted activity to the realities of social media when wrongful discharge claims are brought after an employee is discharged for their online activities. A stricter application of the Meyers standard of concerted activity is likely the best avenue for such modification. This modification should weigh the interests of both employees and employers; particular attention should be paid to the significant increase in exposure to liability an employer faces as the result of employee conduct online. The Board should look more to the intention of the poster and facts leading up to the online activity, focusing less on how many likes or comments such activity elicits from coworkers. Society has changed significantly from the development of social media; the rules that govern this society in its labor relations should evolve with it.
FN1. Lauren Weiner is a J.D. candidate for May 2014 and Notes Editor for the Kentucky Law Journal.
FN2. See Am. Med. Response of Conn., NLRB Adv. Mem., Case No. 34-CA-12576 (Oct. 5, 2010) [hereinafter AMR Adv. Mem.].
FN3. See also Steven Greenhouse, Labor Board Says Rights Apply on Net, N.Y. Times, Nov. 9, 2010, at B1; Memorandum from Anne Purcell, Assoc. Gen. Counsel of the NLRB to All Reg’l Dirs., Officers-in-Charge, and Resident Officers, Report of the Acting Gen. Counsel Concerning Social Media Cases , 5-6 (Aug. 18, 2011) [hereinafter Report of AGC]. Souza was asked by her supervisor to prepare a report regarding a customer complaint about her work. She requested and was subsequently denied union representation. She posted the status from her home computer on her personal Facebook page, where she also referred to the supervisor as a “dick”. AMR Adv. Mem., at 3.
<FN4. Greenhouse, supra note 3, at B1.
FN5. See National Labor Relations Act, 29 U.S.C. § 151 (2006) (“It is hereby declared the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”) The National Labor Relations Act was adopted in 1935. SeeNational Labor Relations Act, Nat’l Labor Relations Bd., https://www.nlrb.gov/national-labor-relations-act (last visited July 6, 2013).
FN6. See Steven Greenhouse, Even if It Enrages Your Boss, Social Net Speech is Protected, N.Y. Times, Jan. 22, 2013, at A1.
FN9. Who We Are: The Board, Nat’l Labor Relations Bd., https://www.nlrb.gov/who-we-are/board (last visited July 6, 2013). The Board generally consists of five Members who are appointed by the President, with consent of the Senate, to five-year terms. Currently, the Board is only comprised of three members: Chairman Mark Gaston Pearce, Sharon Block, and Richard F. Griffin, Jr. Id.
FN11. James O. Castagnera, et al., Unfair Labor Practice Procedures, in 1 Termination of Employment §1:140 (2013). The NLRB has forty Administrative Law Judges (“ALJs”) that hear, settle, and decide unfair labor practice cases. Who We Are: Division of Judges, Nat’l Labor Relations Bd., https://www.nlrb.gov/who-we-are/division-judges (last visited July 6, 2013). After presiding over the trial, the ALJ files a decision suggesting either dismissal of the complaint or an order to cease and desist from the unfair labor practice and affirmative relief. Unfair Labor Practices Process Chart, Nat’l Labor Relations Bd., https://www.nlrb.gov/node/3947 (last visited July 6, 2013).
FN12. Castagnera, supra note 11; Unfair Labor Practices Process Chart, supra note 11. If exceptions are filed, the Board reviews the case and will either dismiss the complaint if it finds that an unfair labor practice was not committed; issue a remedial order if it finds an unfair labor practice was committed; or remand the case to the ALJ for further action. A party may seek judicial review of the Board’s order from the court of appeals; the court of appeals can then enforce, set aside, or remand all or part of the case. Unfair Labor Practices Process Chart, supra note 11; Castagnera, supra note 11.
FN13. L’Eggs Prods., Inc. v. NLRB, 619 F.2d 1337, 1341 (9th Cir. 1980).
FN14. National Labor Relations Act, 29 U.S.C. § 157 (2006).
FN15. National Labor Relations Act, 29 U.S.C. § 158(a)(1) (2006).
FN24. See generally NLRB v. Local Union No. 1229 (Jefferson Standard), 346 U.S. 464 (1953); Atlantic Steel Co., 245 N.L.R.B. 814 (1979); Report of AGC, supra note 3, at 9.
FN25. Atlantic Steel, 245 N.L.R.B. at 816 (citing Hawaiian Hauling Service, Ltd., 219 N.L.R.B. 765, 766 (1975)). In determining whether an employee has engaged in such conduct as to lose the Act’s protection, the Board or must carefully balance several factors: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.”
FN26. Where otherwise protected activity involves communications with a third party, such activity is protected if it meets a two-part test: “(1) the communication indicates to the third party that it is related to an ongoing dispute between an employer and employees; and (2) the communication itself is not ‘so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.’” Five Star Transp., Inc. v. NLRB, 522 F.3d 46, 52 (1st Cir. 2008) (quoting Am. Golf Corp. (Mountain Shadows), 330 N.L.R.B. 1238, 1240 (2000)). See also Jefferson Standard, 346 U.S. at 477-78; Report of AGC, supra note 3, at 9.
FN27. See Greenhouse, supra note 6, at A1.
FN28. Karl Knauz Motors, Inc. (Knauz BMW), 358 N.L.R.B. No. 164, slip. op. at 7 (2012). Hot dogs, chips, and bottled water were served at the event. The employee wrote, “I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years…the new 5 series. A car that will generate tens in millions of dollars in revenues for Knauz over the next few years. The small 8 oz bag of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were a nice touch…but to top it all off…the Hot Dog Cart. Where our clients could attain a over cooked wiener and a stale bun.” Id.
FN29. Id. at 1. The ALJ found that the post was solely the action of the employee, without any discussion with his co-workers, and had no connection to any of the employees’ terms and conditions of employment. Id. at 10-11.
FN30. Hispanics United of Buffalo, Inc., 359 N.L.R.B. No. 37, slip. op. at 1-2 (2012).
FN31. Id. at 1.
FN32. Id. at 2 (citing Meyers I, 268 NLRB at 497). See also Meyers I, 268 N.L.R.B. 493; Meyers II, 281 N.L.R.B. 882.
FN33. Id. (quoting the decision of Administrative Law Judge Arthur J. Amchan) (internal quotation marks omitted).
FN34. Id. at 3 (quoting Relco Locomotives, Inc., 358 N.L.R.B. 37, slip op. at 17 (2012)) (internal quotation marks omitted). In his dissent, Member Hayes contended that a group action defense was not intended because the employees were not told that Cruz-Moore was going to bring her criticisms to the Executive Director and thus the Facebook discussions were not undertaken for the purpose of mutual aid and protection. Id. at 4 (Member Hayes, dissenting).
FN35. Report of AGC, supra note 3, at 2. These cases were “decided upon a request for advice from a Regional Director.” Id.
FN36. Id. at 4. Congruent with the Board’s findings, the AGC determined that the postings “directly implicated terms and conditions of employment and were initiated in preparation for a meeting with the Employer to discuss matters related to these issues” and were thus concerted activity for “mutual aid and protection” under Section 7. Id. The AGC found that this activity was protected, relying on a prior Board decision where employee statements about staffing levels were found to be protected where it was clear from the context of the statements that they involved working conditions. Id. (citing Valley Hosp. Med. Ctr., 351 N.L.R.B. 1250, 1252-54 (2007)).
FN38. Id. at 5 (citing Datwyler Rubber and Plastics, Inc., 350 N.L.R.B. 669 (2007)); AMR Adv. Mem., supra note 2, at 9. This Advice Memo came out prior to settlement between the parties.
FN39. Report of AGC, supra note 3, at 6-7.
FN40. Id. at 8. Because the employees worked entirely on commission, the AGC found that their concern over the potential impact of refreshments on sales was clearly related to terms and conditions of employment. Id.
FN41. Three D, LLC (Triple Play), Admin. Law Judge Decision, Case No. 34-CA-12915 (Jan. 3, 2012); see Report of AGC, supra note 3, at 9-10. It is noteworthy that two customers of the Employer also commented on the status. Id. at 10. The ALJ also underscored the employee’s comment that she had requested to discuss the issue at a meeting, showing that the conversation “contemplated future group activity.” Id.
FN42. Lee Enter. Inc. (Ariz. Daily Star), NLRB Adv. Mem., Case No. 28-CA-23267 (Apr. 21, 2011); see Report of AGC, supra note 3, at 13. The tweets also included criticisms of the paper’s copy editors and negative remarks about an area television station. Supervisors requested the employee stop tweeting about certain subjects from the account numerous points during the course of these events. Id.
FN43. JT’s Porch Saloon & Eatery, NLRB Adv. Mem., Case No. 13-CA-46689 (July 7, 2011) [hereinafter JT’s Saloon, Adv. Mem.]; Report of AGC, supra note 3, at 14.
FN44. JT’s Saloon, Adv. Mem., supra note 43; Report of AGC, supra note 3, at 15.
FN45. Report of AGC, supra note 3, at 17; Martin House, Inc., NLRB Adv. Mem., Case No. 34-CA-12950 (July 19, 2011) [hereinafter Martin House, Adv. Mem.]. After a former client saw the status, she reported the employee. Martin House, Adv. Mem.
FN46. Rural Metro, NLRB Adv. Mem., Case No. 25-CA-31802 (July 18, 2011). The post also contained criticisms that the company only had two trucks for an entire county and detailed an incident where one of Rural Metro’s crews showed up to the scene of a cardiac arrest and did not know how to perform CPR. Id. at 2.
FN47. Id. at 3.
FN48. Wal-Mart, NLRB Adv. Mem., Case No. 17-CA-25030 (July 19, 2011). The employee also referred to the Assistant Manager as a “super mega puta!” and complained that he was being “chewed out” for misplaced merchandise. Id. at 2.
FN49. Id. at 3.
FN50. William E. Hartsfield, Blogs and Social Media, in 1 Investigating Employee Conduct § 6:42 (2013).
FN51. See Adelphi Inst., 287 N.L.R.B. at 1074. See alsoHispanics United, 395 NLRB at 4 (Member Hayes, dissenting) (“Not all shop talk among employees—whether in person, telephonic, or on the internet—is concerted within the meaning of Section 7, even if it focuses on a condition of employment.”).
FN52. Hispanics United, 395 NLRB at 4 (Member Hayes, dissenting).