NLRB Advice Memoranda, Trader Joe's, National Labor Relations Board, (Apr 28, 2021)

This case was submitted for advice as to whether the Employer, a supermarket, terminated the Charging Party for engaging in protected concerted activities when ​     ​ directed criticisms at the Employer's customers on social media regarding their in-store shopping practices during the COVID-19 pandemic. We conclude that the posting was unprotected. Accordingly, the Region should dismiss the charge, absent withdrawal.

On April 6, 2020, the Charging Party posted the following statement on ​     ​ personal Facebook and Instagram accounts:

This is a repost from Trader Joe's employees because I agree 100: Just because we are open doesn't mean we are here for you to spend your time BROWSING around. We are designated as an ESSENTIAL SERVICE. We are not here for you because you have nothing else to do. We are not here because you feel like getting out of the house for a while. We are in a STATE OF EMERGENCY. This is NOT A VACATION! Every customer who walks in our doors PUTS US AT RISK. We really don't want to be here, but we realize that we are needed. YOU don't see how many times a day we wash and sanitize our hands to try to keep ourselves safe. YOU don't see our upset co-workers in the break room struggling to keep their composure. YOU don't see our spouses who worry about us every minute we are at work and who are our strength when we get home. We have our jobs to do and we realize the IMPORTANCE OF OUR JOB TO YOU. The LEAST you can do is come in with a sense of purpose, get what you need, and get yourselves home.

The post was “liked” by three other employees. On ​     ​, 2020, the Employer terminated the Charging Party, stating that the postings violated its social media guidelines by not making clear that ​     ​ was speaking on ​     ​ own behalf, not the Employer's, and failed to comply with the Employer's expectation, set out in its handbook, that employees “treat[] all customers … with Integrity.”

Assuming arguendo that the social media postings were concerted, we conclude that they were unprotected pursuant to the Supreme Court's decision in Jefferson Standard. In applying Jefferson Standard to employees communicating a message, the Board analyzes whether the communications were so “disloyal, reckless, or maliciously untrue” that their intent was to disparage the employer's product or service rather than to appeal for support in a labor dispute. NLRB v. IBEW Local 1229 (Jefferson Standard Broad. Co.), 346 U.S. 464, 477 (1953). We find Jefferson Standard applicable here even though the Charging Party did not directly disparage the Employer, its products, or its services, because ​     ​ insults toward the Employer's customers—the life blood of a retailer's business—were likewise disloyal. Applying Jefferson Standard, we find the postings unprotected because, in addition to disparaging the Employer's customers, they conveyed no nexus to a labor dispute. Although the postings allude to health and safety at the workplace, they do not indicate employees were seeking to enlist public or governmental support to change management practices or laws concerning health and safety. Instead, the posting insults customers over normal shopping behavior. In Mountain Shadows Golf Resort, 330 NLRB 1238, 1241 (2000), petition for review denied mem., 86 F. App'x 305 (9th Cir. 2004), the Board similarly found an employee's handbill was not protected because it disparaged his employer without reference to a labor dispute. Although the handbill mentioned a maintenance issue that was related to an employee concern, it raised the issue under the guise of promoting the public's interest, “not as a way to change labor practices at the golf course.” Id.

In all these circumstances the charge should be dismissed, absent withdrawal. This e-mail closes the case in advice. If you have any questions or concerns please call me.

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Senior Attorney

Division of Advice

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