Labor Relations and NLRB Decisions: 1996 - Present, HISPANICS UNITED OF BUFFALO, INC. and CARLOS ORTIZ., 2012-13 CCH NLRB ¶15,656, National Labor Relations Board, (Dec 14, 2012)

From Text of Board's Decision

On September 2, 2011, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Acting General Counsel filed an answering brief. The Acting General Counsel filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the Acting General Counsel filed a reply brief. [1]

The National Labor Relations Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rulings, [2] findings, [3] and conclusions [4] and to adopt the recommended Order.

At issue in this case is whether the Respondent violated Section 8(a)(1) of the Act by discharging five employees for Facebook comments they wrote in response to a coworker's criticisms of their job performance. Although the employees' mode of communicating their workplace concerns might be novel, we agree with the judge that the appropriate analytical framework for resolving their discharge allegations has long been settled under Meyers Industries [5] and its progeny. Applying Meyers, we agree with the judge that the Respondent violated 8(a)(1) by discharging the five employees.

The relevant facts are as follows. Marianna Cole-Rivera and Lydia Cruz-Moore were coworkers employed by the Respondent to assist victims of domestic violence. The two employees frequently communicated with each other by phone and text message during the workday and after hours. According to Cole-Rivera's credited testimony, Cruz-Moore often criticized other employees during these communications, particularly housing department employees who, Cruz-Moore asserted, did not provide timely and adequate assistance to clients. Other employees similarly testified that Cruz-Moore spoke critically to them about their work habits and those of other employees.

This “criticism” issue escalated on Saturday, October 9, 2010, a nonworkday, when Cole-Rivera received a text message from Cruz-Moore stating that the latter intended to discuss her concerns regarding employee performance with Executive Director Lourdes Iglesias. Cole-Rivera sent Cruz-Moore a responsive text questioning whether she really “wanted Lourdes to know … how u feel we don't do our job… .” From her home, and using her own personal computer, Cole-Rivera then posted the following message on her Facebook page:

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?

Four off-duty employees—Damicela Rodriguez, Ludimar Rodriguez, Yaritza Campos, and Carlos Ortiz—responded by posting messages, via their personal computers, on Cole-Rivera's Facebook page; the employees' responses generally objected to the assertion that their work performance was substandard.

Cruz-Moore also responded, demanding that Cole-Rivera “stop with ur lies about me.” She then complained to Iglesias about the Facebook comments, stating that she had been slandered and defamed. At Iglesias' request, Cruz-Moore printed all the Facebook comments and had the printout delivered to Iglesias. On October 12, the first workday after the Facebook postings, Iglesias discharged Cole-Rivera and her four coworkers, [6] stating that their remarks constituted “bullying and harassment” of a coworker and violated the Respondent's “zero tolerance” policy prohibiting such conduct. [7]

In Meyers I, the Board held that 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. 268 NLRB at 497. See also Correctional Medical Services, [ 2010-11 CCH NLRB ¶15,370] 356 NLRB No. 48, slip op. at 2 (2010). Only the first and third elements are in dispute here: whether the employees' Facebook comments constituted concerted activity and, if so, whether that activity was protected by the Act. [8]

The Board first defined concerted activity in Meyers I as that which is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” 268 NLRB at 497. In Meyers II, the Board expanded this definition to include 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.” 281 NLRB at 887.

Applying these principles, as the judge did, there should be no question that the activity engaged in by the five employees was concerted for the “purpose of mutual aid or protection” as required by Section 7. As set forth in her initial Facebook post, Cole-Rivera alerted fellow employees of another employee's complaint that they “don't help our clients enough,” stated that she “about had it” with the complaints, and solicited her coworkers' views about this criticism. By responding to this solicitation with comments of protest, Cole-Rivera's four 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.” 268 NLRB at 497. The actions of the five employees were also concerted under the expanded definition of Meyers II, because, as the judge found, 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.” [9]

Our dissenting colleague contends that the employees' Facebook discussions about Cruz-Moore's criticisms were not undertaken for the purpose of their “mutual aid and protection.” Specifically, he states that a group action defense to Cruz-Moore's criticisms could not have been intended because Cole-Rivera failed to tell her coworkers that Cruz-Moore was going to voice her criticisms to Iglesias. We disagree.

In Relco Locomotives, Inc., 358 NLRB No. 37, slip op. at 17 (2012), the Board reiterated established precedent that the “object or goal of initiating, inducing or preparing for group action does not have to be stated explicitly when employees communicate,” citing Whittaker Corp., [ 1987-88 CCH NLRB ¶19,530] 289 NLRB 933, 933 (1988). 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 … .” Id. Relying on this authority, the Board in Relco found unlawful the discharge of two employees for discussing among themselves and other employees their “concern” about the rumored discharge of a fellow employee. Notwithstanding that the two never “talk[ed] specifically about working together to address their concerns about [the employee's] termination,” the Board adopted the judge's finding that they “engaged in concerted activities when they communicated with other employees about their concern …[and i]t matter[ed] not that [they] had not yet taken their concerns to management—their discussions with coworkers were indispensable initial steps along the way to possible group action” Id., slip op. at 17.

Here, too, Cole-Rivera's Facebook communication with her fellow employees, immediately after learning that Cruz-Moore planned to complain about her coworkers to Iglesias, had the clear “mutual aid” objective of preparing her coworkers for a group defense to those complaints. Contrary to our colleague, Cole-Rivera was not required under Relco to discuss this object with coworkers or tell them it was made necessary by Cruz-Moore's impending visit with Iglesias. Her “mutual aid” object of preparing her coworkers for group action was implicitly manifest from the surrounding circumstances. Timekeeping Systems, Inc., 323 NLRB 244, 248 (1997). [10]

As to the third element of the violation, whether the employees' concerted activity was protected, we find that the Facebook comments here fall well within the Act's protection. The Board has long held that Section 7 protects employee discussions about their job performance, [11] and the Facebook comments plainly centered on that subject. As discussed, the employees were directly responding to allegations they were providing substandard service to the Respondent's clients. Given the negative impact such criticisms could have on their employment, the five employees were clearly engaged in protected activity in mutual aid of each other's defense to those criticisms. [12]

The Respondent does not argue that the employees' comments were unprotected because they were made via Facebook. To the contrary, the Respondent asserts that, “regardless of where the comments and actions of the five terminated at-will employees took place, the result herein would have been the same.” According to the Respondent, it was privileged to discharge the five employees because their comments constituted unprotected harassment and bullying of Cruz-Moore, in violation of its “zero tolerance” policy. The judge rejected this argument, and so do we.

First, as the judge found, the Facebook comments cannot reasonably be construed as a form of harassment or bullying within the meaning of the Respondent's policy. [13] Second, even assuming that the policy covered the comments, the Respondent could not lawfully apply its policy “without reference to Board law.” Consolidated Diesel Co., [ 2000-01 CCH NLRB ¶15,668] 332 NLRB 1019, 1020 (2000), enfd. 263 F.3d 345 (4th Cir. 2001). As the Board explained in Consolidated Diesel, “legitimate managerial concerns to prevent harassment do not justify policies that discourage the free exercise of Section 7 rights by subjecting employees to … discipline on the basis of the subjective reactions of others to their protected activity.” Id. Here, as in Consolidated Diesel, the Respondent applied its harassment policy to the discharged employees based solely on Cruz-Moore's subjective claim (in a text message) that she felt offended by the Facebook comments. As the United States Court of Appeals for the Fourth Circuit noted in enforcing the Board's decision, “[s]uch a wholly subjective notion of harassment is unknown to the Act,” 263 F.3d 354, and discipline imposed on this basis violates Section 8(a)(1).

In sum, because we have found that the Facebook postings were concerted and protected, and because it is undisputed that the Respondent discharged the five employees based solely on their postings, we conclude that the discharges violated Section 8(a)(1).

Dated, Washington, D.C. December 14, 2012

[Dissent]

Hayes, Member , dissenting: I agree with my colleagues and the judge that Meyers Industries [14] and its progeny control in determining whether the Respondent violated Section 8(a)(1) of the Act by discharging five employees for their Facebook postings about a coworker's criticisms of their work. Correctly applied, however, the Meyers test mandates dismissal of the complaint. This is so because “[i]n order for employee conduct to fall within the ambit of Section 7, it must be both concerted and engaged in for the purpose of ‘mutual aid or protection.’ These are related but separate elements that the General Counsel must establish in order to show a violation of Section 8(a)(1).” [15] In this case, the colloquy around the Facebook “virtual water cooler” may have been concerted, in the sense that it was actual group activity, but the Acting General Counsel has failed utterly to prove that it was activity undertaken for “mutual aid and protection.” As a result, I would find that the Respondent lawfully discharged the employees for their unprotected Facebook comments. [16]

Not all shop talk among employees—whether inperson, telephonic, or on the internet—is concerted within the meaning of Section 7, even if it focuses on a condition of employment. [17] With respect to the second element of the Acting General Counsel's burden, the Meyers test expressly incorporates the requirement of Mushroom Transportation Co. v. NLRB, [ 49 LC ¶18,921] 330 F.2d 683 (3d Cir. 1964), that for conversations among employees to fall within the definition of concerted activity protected by Section 7 “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 the employees.” [18] Absent evidence of a nexus to group action, such conversations are mere griping, which the Act does not protect.

Here, the group griping on Facebook was not protected concerted activity because there is insufficient evidence that either the original posting or the views expressed in response to it were for mutual aid or protection. Specifically, in her initial Facebook post, Marianna Cole-Rivera informed her coworkers that Lydia Cruz-Moore had complained that “we don't help our clients enough,” and solicited her coworkers' views about this criticism. Four coworkers posted responses on Cole-Rivera's Facebook page, generally objecting to Cruz-Moore's claims that their work performance was deficient. Cole-Rivera posted another comment, essentially agreeing with her coworkers' posts. Subsequent posts diverged to discussion of a party planned for that evening.

My colleagues find that the employees' conduct was concerted because, in responding to Cole-Rivera's initial Facebook post, her four coworkers made “common cause” with her. They did not. As previously stated, the mere fact that the subject of discussion involved an aspect of employment—i.e., job performance—is not enough to find concerted activity for mutual aid and protection. 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. While the Facebook posts evidenced the employees' mutual disagreement with Cruz-Moore's criticism of their job performance, the employees did not suggest or implicitly contemplate doing anything in response to this criticism. The five employees were simply venting to one another in reaction to Cruz-Moore's complaints. This does not constitute concerted activity under the precedent set forth above.

In the alternative, my colleagues agree with the judge's finding that the five employees “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.” The record fails to support this conclusion. There is no credible evidence that Cole-Rivera made her initial posting with the intent of promoting a group defense, or that her coworkers responded for this purpose. [19] Although Cruz-Moore texted Cole-Rivera that she was going to voice her complaints about housing department employees to Executive Director Iglesias, Cole-Rivera made no mention of this message in her initial posting about these complaints and the four employees who responded to the posting were undisputedly not aware of this message. This would be a different case if Cole-Rivera had informed her coworkers that Cruz-Moore intended to discuss her complaints with management and asked them how they should respond. But on this record, there is no evidence that these employees were preparing for group action. [20]

Jhirmack Enterprises, [ 1986-87 CCH NLRB ¶18,700] 283 NLRB 609 fn. 2 (1987), and Praxair Distribution, Inc., [ 2010-11 CCH NLRB ¶15,487] 357 NLRB No. 91, slip op. at 11 (2011), cited by my colleagues, are distinguishable. In Jhirmack, the Board found that an employee was engaged in protected concerted activity when she advised a coworker that other employees had complained to management about his slow job performance. The Board noted that the employee complaints were prompted by their concern that their coworker's performance adversely affected their chances of getting more money. The employee told her coworker about the complaints to encourage him to take corrective action to protect his job. Thus, the Board found that the employee's conduct was taken for the mutual aid and protection of a coworker and therefore was concerted activity. In Praxair Distribution, supra, the Board adopted the judge's finding that two employees engaged in protected concerted activity where they brought their grievances to the attention of management. [ 2010-11 CCH NLRB ¶15,487] 357 NLRB No. 91, slip op at 19. In both Jhirmack and Praxair, unlike here, there was clear evidence of group action.

The facts of this case far more closely resemble those in cases where the Board has found no protected concerted activity in the absence of evidence of a nexus between employee discussions and group action. Daly Park Nursing Home, 287 NLRB 710 (1987), is illustrative of this precedent. There, the Board found that an employee's discussion with coworkers about another employee's discharge did not constitute concerted activity because there was no evidence that any of the employees had contemplated doing anything about the discharge. Id. at 711. According to the Board, “there [was] nothing more than a conversation between employees relating their opinion on matters of interest to the employees” and the conversation “[did] not indicate that ‘group action of any kind [was] intended contemplated, or even referred to.’” Id. (quoting Mushroom Transportation, 330 F.2d at 685).

Here, as in Daly Park, there is no evidence that the five employees “contemplated, or even referred to,” doing anything as a group in response to their coworker's criticism. My colleagues' contrary view cannot be reconciled with this extant precedent following and applying the Meyers test. Accordingly, I dissent from their adoption of the judge's finding that the employees were engaged in concerted activity for mutual aid and protection.

Inasmuch as the Acting General Counsel has failed to meet his initial burden of proving that the alleged discriminatees were engaged in concerted activity protected by the Act, I need not address whether the Respondent correctly relied on its zero tolerance no-harassment policy in discharging them. It is well established that an employer may discharge an employee “for good cause, bad cause, or no cause at all, without violating the Act as long as his motivation is not antiunion discrimination and the discharge does not punish activities protected by the Act.” [21] I would therefore dismiss the complaint.

Dated, Washington, D.C. December 14, 2012