By Joshua M. Henderson

Today, in Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012), the NLRB released its first decision to examine protected, concerted activity involving Facebook.  Given the ubiquity of this social networking site, the Board’s decision should generate a great deal of interest.  By a 3-1 vote, the Board held that the employer committed an unfair labor practice by discharging five employees for responding to another employee’s criticism of their work performance on Facebook.  “Although the employees’ mode of communicating their workplace concerns might be novel,” the Board majority purported to apply established precedent to the Facebook postings and concluded this activity was for “mutual aid or protection” within the meaning of Section 7 of the National Labor Relations Act.

The facts of this case are hardly novel.  While discussing work, one employee (Cruz-Moore) often criticized the job performance of another employee (Cole-Rivera) and her colleagues.  On a non-workday, Cruz-Moore informed Cole-Rivera by text that she was going to discuss her concerns regarding employee performance with their boss.  Cole-Rivera turned to Facebook to vent about this situation: “Lydia Cruz, a coworker feels we don’t help our clients enough at [Respondent].  I [sic] about had it!  My fellow coworkers how do u feel?”  (Because Cole-Rivera was off work and using her personal computer, the Board did not need to grapple with the question whether employers may restrict employees’ use of work computers for personal use).  Four of her co-workers responded on Facebook to her post that, in essence, the criticism of their job performance was unfair.  Cruz-Moore complained to her employer’s executive director that she felt slandered by this exchange on Facebook, and printed out the Facebook posts at her employer’s request.  On the next workday, Cole-Rivera and the other four employees were discharged for “bullying and harassment” in violation of the employer’s “zero tolerance” policy.

Posting a comment or status update on Facebook is at once a solitary activity that also has the potential to call many others to action.  But not all workplace griping rises to the level of protected, concerted activity.  The issue that divided the Board majority and Member Hayes in dissent was the significance of the failure of Cole-Rivera’s Facebook post to mention that Cruz-Moore intended to tell management about her concerns regarding their job performance.  For the majority, it was sufficient that Cole-Rivera’s objective in posting on Facebook was for mutual aid, in preparing the other employees for a group defense in response to the criticism of their performance.  In dissent, Member Hayes observed that “[t]here is a meaningful difference between sharing a common viewpoint and joining in a common cause.”  There was no “evidence of a nexus to group action,” according to the dissent, without proof that Cole-Rivera had informed the employees that Cruz-Moore was preparing to speak to management about her concerns and asking them how they should respond. 

According to the Board majority, when examining individual activity to determine whether Section 7 rights are implicated, we must look to whether a mutual aid objective is “implicitly manifest from the surrounding circumstances.”  This is a recipe for mischief, and a nearly impossible standard for employers to apply.  Or, to put it in Facebook vernacular, “unlike.”