Employee Complaints on Facebook: Unionizing Speech?

facebookclayAccording to the Bureau of Labor Statistics, only about 11.3% of American workers are part of a union. As the National Labor Relations Board (NLRB) sees it, the other 88.7% are potentially in the process of unionizing, and it is up to the NLRB to safeguard the rights of those workers to do so. So the NLRB gets involved when employees engage in “concerted activity,” which includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and when employees bring “truly group complaints.” Meyers Industries 281 NLRB at 887 (1986). In those cases, the employees’ speech is deemed protected under Section 7 of the National Labor Relations Act (NLRA).

So the question that has begun to plague the NLRB in recent years is what sort of Facebook statuses, Twitter tweets, Tumblr blog posts, LinkedIn updates, YouTube videos, Pinterest pins, and other social media posts constitute a first step towards group action, and what sort  are merely public outbursts. Two recent cases bound the issue on each side, but also left some interesting questions.

In Hispanics United of Buffalo, Inc. and Carlos Ortiz. Case 03–CA–027872, a Ms. Cole-Rivera posted on Facebook that she was concerned that another employee, Ms. Lydia Cruz, might complain to an executive at the company that certain employees were not adequately doing their jobs, saying “Lydia Cruz, a coworker feels that we don’t help our clients enough at Hispanics United. I about had it! My fellow coworkers how do u feel?“ Several other employees commented on the post, objecting to the idea that their performance was substandard and Ms. Cruz also commented “stop with ur lies about me“. Hispanics United fired Ms. Cole-Rivera and four of the commenting coworkers stating that the comments were harassment and bullying. The NLRB, however, found that the speech was protected because it was engaged in “was concerted for ‘the purpose of mutual aid or protection’ as required by Section 7.”

In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker. Case 13–CA–046452, a salesman at a BMW dealership, adjacent to a Land Rover dealership owned by the same employer, posted about an accident at the Land Rover dealership. The salesman, Mr. Becker, posted several pictures on Facebook and commented “This is what happens when a sales Person sitting in the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!” Other employees at the dealership commented, but limited their to responses such as “How did I miss all the fun stuff?“ and “Finally, some action at our Land Rover store.” Mr. Becker was fired over the incident, as well as other pictures and comments on his Facebook page. The NRLB found in that case that the posts and comments amounted to a “lark,” rather than concerted activity.

So, to summarize, when an employee discusses on Facebook another employee’s criticism of her coworkers, and there is the potential for a complaint to management, this is concerted activity. However, when an employee discusses on Facebook a funny accident at work, this is not concerted activity, and thus no protection is afforded under Section 7 of the NLRA.

These two decisions leave a number of interesting questions about social media policy in the workplace. Does reposting a coworkers gripes mean you are discussing the issue? How many comments from other employees do you need before your speech gets Section 7 protection? Chairman of the NLRB, Mark Pearce, even said in a recent speech that the Board is currently considering a case which hinges on whether Facebook Likes constitute participation by other employees. And how will Google Glass affect all this? With the pace of change in social media, the Board will have no shortage of interesting questions to contemplate regarding the nature of collective action in the workplace.

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