"Concert" or solo gig? Where the NLRB went wrong when it linked in to social networks.

• Author: Metcalf, Andrew O.

Late last year, labor law took an important step into the 21st century. In Hispanics United of Buffalo, Inc., (1) the National Labor Relations Board (NLRB or "Board") held that an employer violated section 8 of the National Labor Relations Act (NLRA or "Act") by terminating five employees who posted a series of comments about the employer on the popular social networking website Facebook. (2) Outside of work hours, the employees posted to Facebook a number of comments about a dispute related to their job. The original post said, "Lydia Cruz, a coworker feels that we don't help our clients enough at HUB I about had it! My fellow coworkers how do u feel?" (3) In less than two hours, a number of her colleagues posted a variety of responses, including: "What the f ... Try doing my job I have 5 programs"; "What the Hell, we don't have a life as is, What else can we do???"; and "Tell her to come do mt [my] fucking job n c if I don't do enough, this is just dum." (4)

The employee who was the subject of the posts saw them on Facebook and complained to a supervisor at work. (5) The supervisor met individually with five of the employees who posted messages, told them that the posts "constituted bullying and harassment and violated [the employer's] policy on harassment," and discharged them immediately. (6) An Administrative Law Judge held in September 2011 that the employer wrongfully terminated the employees in violation of sections 7 and 8 of the NLRA, (7) and the Board upheld the decision. (8)

Social networks have been a prevalent part of the Internet for years, (9) but in 2012 the Board first took the position that employees can be protected under sections 7 and 8 of the NLRA from retaliation for their online activity. (10) Section 7 mandates that "[e]mployees shall have the right ... to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection." (11) Section 8 makes it an unfair labor practice to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]." (12)

These cases arise out of similar fact patterns. An employee logs onto a social networking website, such as Facebook or Twitter, and publishes a brief comment about something that he finds unsatisfactory at work. (13) Some posts are disparaging and derogatory; (14) others are less offensive. Because social networking websites are designed to allow users to interact and share information with one another, other web users (including coworkers and customers) read the material. (15) On Twitter, a user might "retweet" the comment to share it with more users and add her own opinion. (16) To do the same on Facebook, a user might perform any number of actions which would disperse the material to more people on the site: clicking a button beneath the post that says "Like;" (17) sharing the item with her own network of Facebook friends; (18) or adding a comment beneath the original post. (19) Co-workers or customers of the same employer might reply to the complaint to offer their support or disagreement. (20) They might formulate a plan to improve the situation when they return to work, (21) or they might not. (22) In any case, almost as soon as the post goes online, the employer finds out about it and subsequently discharges the employee for insubordination. (23)

The employee files a complaint with the Board under section 8(a) of the Act. (24) When the case makes its way to court, the principal legal issue is whether the employee who was terminated for posting the material online was engaging in a protected concerted activity for the purpose of mutual aid or protection. The issue is of particular importance because of the potential volume of claims that could arise based on terminations that result from employee expression on the Internet. (25)

Administrative Law Judges (ALJs) first answered these questions in a series of cases in 2011, and the NLRB followed by upholding two of those decisions in 2012. (26) Despite the NLRB General Counsel's assertions to the contrary, the initial lawsuits in this area have not targeted situations that are "fairly straightforward" (27) under section 7. Rather, the nature of social networking websites and the comments that employees commonly publish on them raise compelling questions about the scope of protection afforded under the law, indicating that the NLRB in fact is "wading into uncharted legal territory" (28) and should take an early opportunity to set the fight course. The Internet is a new medium for employees acting in concert, but the core principles for determining what constitutes "concerted activity" remain the same. (29) Although the meaning of "concerted activity" is broad enough to encompass some individual activity, (30) there are limitations on how far the term will go to protect an employee who acts by making a Facebook post or Tweet. (31)

This Note argues that some of the recent social media decisions by ALJs and the Board may extend section 7's protection of concerted activity beyond what precedent allows. (32) Furthermore, it proposes that even where the activity is concerted and for mutual aid or protection, the NLRB should not apply section 7 protection to employee social network posts that tarnish the employer's public image by disseminating details about workplace problems on the Internet. The Supreme Court has suggested that "even when concerted activity comes within the scope of the 'mutual aid or protection' clause, the forms such activity permissibly may take may well depend on the object of the activity." (33) In the social networking cases, the Board and courts would best effectuate the purpose of the NLRA, while allowing employers to control their public image, by protecting only employees' online statements that are communicated privately or that do not disparage the employer.

Part I provides a general history of the NLRA and an overview of recent social networking cases that have been decided by ALJs. Part II examines the definition of concerted activity and the challenges for parties who contend that their individual social network activity was concerted. Part III discusses the "mutual aid or protection" requirement. Part IV suggests that in deciding whether to grant employees section 7 protection, the NLRB should adopt a balancing test that would consider the form of the protest against the object of the activity before extending protection. (34)

1. HISTORY OF THE NLRA, CONCERTED ACTIVITY, AND THE SOCIAL NETWORKING LAWSUITS

   Section 7 of the NLRA is the legal foundation for the NLRB's claims against employers in the social network cases. (35) Under the law, "[e]mployees shall have the right to self-organization, to form, join or to 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." (36) Although the statute enumerates a few very specific rights, the catch-all protection of "concerted activities for ... mutual aid or protection" is much broader. (37) Section 8 makes it unlawful for employers to retaliate against employees who engage in concerted activity under section 7. (38) To meet the requirements for protection, the employee's activity: (1) must be concerted; (2) must be undertaken for the purpose of mutual aid or protection; and (3) cannot be unlawful, excessively disloyal, or any other circumstance that would go beyond the purpose of the statute and justify removing protection. (39) Additionally, for the employer to be liable, the employer must have "[known] the concerted nature of the employee's activity," and that activity must have been the motivation for the employee's discharge. (40) Unlike most other provisions of the NLRA, this section applies to nearly all non-union workplaces. (41)

   The general history of section 7 of the NLRA, like many other labor laws, is tied to the legacy of the New Deal. Also known as the Wagner Act, the law was passed at a time when "employers were virtually unrestrained by law from dealing with unions as they saw fit." (42) Prior to the passage of the NLRA, when employees tried to make a better workforce through union activity, employers engaged in "bribery of employees, company spy systems, blacklisting of union sympathizers, removal of an existing business to another location for the sole purpose of frustrating union activity, and promises by employers of wage increases or other special concessions to employees should the latter refrain from joining a union." (43) "The Wagner Act was motivated by Senator Robert Wagner's desire to enable workers and employers to bargain from levels of comparative strength and to achieve industrial peace through collective bargaining." (44)

   Accordingly, the Supreme Court has applied section 7 to protect employees who distributed union-sponsored newsletters to co-workers, (45) and employees who left work without permission to protest cold temperatures in the workplace. (46) However, the Court has also recognized certain limitations to the clause. (47) Ultimately, in its more than seventy-five years of existence, section 7 has been used to protect employees and increase their bargaining power when they intend to create a better work environment.

   1. Section 7 before Social Media

      Before examining the application of section 7 to the new social media cases, it is informative to review two cases under section 7: a classic case arising under the law, and a modem one that applied section 7 to another modem technology: e-mails.

      NLRB v. Washington Aluminum is an early and oft-cited case involving non-union employees who exercise their rights under section 7. (48) On an "extraordinarily cold day in Baltimore," employees arrived to work at their employer's machine shop to find unbearably cold (and therefore unworkable) conditions. (49) The employees discussed the...