A recent NLRB decision may help protect that venting you’ve been doing about your job on Facebook – so long as it falls under very specific criteria. But, it also shows how an employer can try to flip that “zero tolerance” “bullying & harassment policy” against employees. Slate summed it up this way: “The case—Hispanics United of Buffalo—started one Saturday morning in 2010. That was when domestic violence advocate Mariana Cole-Rivera took to Facebook to complain that one of her co-workers was unfairly accusing fellow employees of laziness. Several other staffers at Hispanics United of Buffalo chimed in to say they worked plenty hard already. Soon after Cole-Rivera and her co-workers returned to work, HUB fired five of them, arguing that their off-the-clock comments had violated the nonprofit’s anti-harassment policy.” The NLRB decision ruled against HUB’s use of the bullying policy for the terminations:
“…Lourdes Iglesias met individually with five of the employees who had made the Facebook posts on October 9 and fired each one of them. She told them that the posts constituted bullying and harassment and violated HUB’s policy on harassment. Iglesias did not terminate the employment of her secretary, Jessica Rivera, who had also entered a post on Cole-Rivera’s Facebook page on October 9.
Each of the meetings was very short. Iglesias told each of the employees that Cruz-Moore had suffered a heart attack as a result of their harassment and that [HUB] was going to have to pay her compensation. For these reasons, Iglesias told each one that she would have to fire them. It is not established in this record that Cruz-Moore had a heart attack, nor whether there was any casual relationship between whatever health problems Cruz-Moore may have been experiencing and the Facebook posts. Furthermore, the record establishes that when Iglesias decided to fire the five discriminatees she had no rational basis for concluding that their Facebook posts had any relationship to Cruz-Moore’s health.
It has also not been established why [HUB] or its insurance carrier would have had to compensate Cruz-Moore. Typically, a workers’ compensation claimant has to show some relationship been their physical ailment and their employment. This is often difficult in cases in which the ailment, particularly something like a heart attack or a stroke, manifested itself when the employee was not at work.
Several employees were handed termination letters at their meeting with Iglesias; others received them in the mail a few days later. [HUB] has not replaced the five alleged discriminatees. It has given their work responsibilities to other employees and has operated with five fewer employees (25 as opposed to 30).
So, if you’re pressuring your employer to establish a bullying policy, make sure it includes specific procedures and a fair investigation and that it’s not too “fuzzy” or subjective. Or, it may come back to haunt you. Here are the Facebook posts and excerpts from the NLRB member who dissented:
…On Saturday, October 9, 2010, at 10:14 a.m., Mariana Cole-Rivera posted the following message on her Facebook page from her home:
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? 4
The following employees responded by posting comments on Cole-Rivera’s Facebook page:
At 10:19, Damicela Rodriguez (also known as Damicela Pedroza Natal) posted the following response: What the f. .. Try doing my job I have 5 programs
At 10:26, Ludimar (Ludahy) Rodriguez posted: What the Hell, we don’t have a life as is, What else can we do???
At 11: 11, Yaritza (M Ntal) Campos posted: Tell her to come do mt [my] fucking job n c if I don’t do enough, this is just dum
At 11:41, Carlos Ortiz de Jesus posted: I think we should give our paychecks to our clients so they can “pay” the rent, also we can take them to their Dr’s appts, and served as translators (oh! We do that). Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in their house watching tv, and also we can go to do their grocery shop and organized the food in their house pantries … (insert sarcasm here now)
Mariana Cole-Rivera posted again at 11:45: Lol. I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do ..I will give her that. Clients will complain especially when they ask for services we don’t provide, like washer, dryers stove and refrigerators, I’m proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human love ya guys
Nannette Dorrios, a member of the Board of Directors at HUB posted at 12:10: Who is Lydia Cruz?
Yaritza Campos posted a second time at 12:11: Luv ya too boo
Mariana Cole-Rivera at 12:12 responded to Dorrios by the following post: She’s from the dv program works at the FJC [Family Justice Center] at hub once a week.
Jessica Rivera, the Secretary to HUD Director Iglesias, posted at 1: 10 p.m. Is it not overwhelming enough over there?
At 2:27 Lydia Cruz-Moore posted: Marianna stop with ur lies about me. I’ll b at HUB Tuesday..
Cole-Rivera responded at 2:56: Lies? Ok. In any case Lydia, Magalie [Lomax, HUB’S Business Manager] is inviting us over to her house today after 6:00 pm and wanted to invite you but does not have your number i’ll inbox you her phone number if you wish.
Carlos Ortiz posted at 10:30 p.m. Bueno el martes llevo el pop corn [Good, Tuesday, I’ll bring the popcorn].
Lydia Cruz-Moore complained to HUB Executive Director Lourdes Iglesias about the Facebook posts. Her text messages to Iglesias suggest that she was trying to get Iglesias to terminate or at least discipline the employees who posted the comments on Facebook. She appears to have had a dispute with Mariana Cole-Rivera, which was at least in part work related. It is not clear why she bore such animosity against the other employees, most of whom did not mention her name in their posts.
FROM THE DECISION
…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. 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., 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)…
FROM THE DISSENTING MEMBER
Not all shop talk among employees—whether in-person, telephonic, or on the internet—is concerted within the meaning of Section 7, even if it focuses on a condition of employment. 4 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, 330 F.2d 683 (3d Cir. 1964), that for conversations among employees to fall within the definition of concerted activity pro- tected 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.” 5 Absent evidence of a nexus to group action, such conversa- tions 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. Specifi- cally, 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 discus- sion 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 as- pect of employment—i.e., job performance—is not enough to find concerted activity for mutual aid and pro- tection. There is a meaningful distinction between shar- ing 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 com- plaints. This does not constitute concerted activity under the precedent set forth above
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.