"Liking" a Comment on Facebook Can Be NLRA-protected Concerted Activity: NLRB | Practical Law

"Liking" a Comment on Facebook Can Be NLRA-protected Concerted Activity: NLRB | Practical Law

In Three D, LLC d/b/a Triple Play Sports Bar and Grille, the National Labor Relations Board (NLRB) held that "liking" Facebook comments concerning complaints about owing state taxes because of purported employer errors in tax withholdings was concerted activity. The NLRB held that the employer unlawfully discharged two nonunion employees who participated in the expletive-ridden Facebook discussion. The NLRB also held that a company policy prohibiting inappropriate discussions on the internet or in blogs was sufficiently imprecise that employees would reasonably construe it to prohibit activity protected under Section 7 of the National Labor Relations Act (NLRA).

"Liking" a Comment on Facebook Can Be NLRA-protected Concerted Activity: NLRB

Practical Law Legal Update 3-579-1165 (Approx. 11 pages)

"Liking" a Comment on Facebook Can Be NLRA-protected Concerted Activity: NLRB

by Practical Law Labor & Employment
Law stated as of 04 Nov 2015 • USA (National/Federal)
In Three D, LLC d/b/a Triple Play Sports Bar and Grille, the National Labor Relations Board (NLRB) held that "liking" Facebook comments concerning complaints about owing state taxes because of purported employer errors in tax withholdings was concerted activity. The NLRB held that the employer unlawfully discharged two nonunion employees who participated in the expletive-ridden Facebook discussion. The NLRB also held that a company policy prohibiting inappropriate discussions on the internet or in blogs was sufficiently imprecise that employees would reasonably construe it to prohibit activity protected under Section 7 of the National Labor Relations Act (NLRA).
On August 22, 2014, in Three D, LLC, the panel (Board) heading the NLRB's judicial functions held that "liking" a Facebook comment concerning complaints about owing state taxes because of purported employer errors in tax withholding was concerted activity. The NLRB held that the employer unlawfully discharged two nonunion employees who participated in the expletive-ridden Facebook discussion initiated by that comment. The majority of the three-member Board panel also held that a company policy prohibiting inappropriate discussions on the internet or in blogs was unlawful because employees would reasonably construe it to prohibit activity protected under Section 7 of the NLRA. (361 N.L.R.B. slip op. 31, (Aug. 22, 2014).)

Background

Three D, LLC, owned by Ralph DelBuono and Thomas Daddona, runs Triple Play Sports Bar and Grille. Jillian Sanzone, an employee discovered that she owed more in state taxes than she anticipated. She discussed this issue with co-workers at work and some employees complained to Three D. The company planned a meeting at which the staff could discuss the issues with the payroll provider.
In January 2011, a former employee, Jamie LaFrance, posted a status update on Facebook, stating:
"Maybe someone should do the owners of Triple Play a favor and buy it from them. They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!!"
Several employees, former employees and customers, including Sanzone and another current employee Vincent Spinella, posted responsive comments or "liked" that comment. The expletive-ridden discussion included posts that:
  • Called DelBuono names.
  • Suggested DelBuono:
    • underpaid LaFrance;
    • committed tax-filing errors causing employees to owe state income taxes; and
    • "pocketed" funds that should have been withheld for state income taxes.
  • Suggested that LaFrance might discuss the purported wage payment and tax withholding problems with the "labor board".
  • Noted that employees would raise the tax matter at an upcoming staff meeting.
  • Noted one customer's dissatisfaction with Triple D's prices and another's general dissatisfaction with Triple D.
Spinella clicked the Facebook "Like" button under LaFrance's initial comment. Sanzone, in response to LaFrance's post that suggested that DelBuono "pocketed" funds, commented, "I owe too. Such an asshole."
Daddona learned about the discussion from his sister, a Triple D employee and Facebook friend of LaFrance. On February 2, Sanzone's employment was terminated purportedly because she was not loyal enough to be working for Triple D because of her Facebook comment. The next day, DelBuono and Daddona called Spinella to a meeting. With the Facebook discussion displayed on a computer screen:
  • Asked Spinella:
    • whether he had a problem with the company;
    • about the Facebook discussion;
    • what his "Like" meant;
    • who participated in the discussion; and
    • whether Spinella had written anything negative about DelBuono and Daddona.
DelBuono then:
  • Told Daddona that Spinella's "Like" meant that he stood by his co-worker's disparaging and defamatory comments and apparently wanted to work somewhere else.
  • Discharged Spinella.
  • Told Spinella that he would be hearing from Triple D's attorneys.
Triple D's attorneys:
  • Never contacted or started any legal action against Spinella.
  • Contacted Sanzone by letter noting that it was considering bringing a defamation action against her.
  • Contacted LaFrance, who later deleted the entire discussion and posted a retraction.
Triple D maintained an Internet/Blogging policy stating, in part:
"The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect."
Sanzone and Spinella filed separate unfair labor practice (ULP) charges with the NLRB and the NLRB issued a complaint and consolidated the cases for trial. An NLRB administrative law judge (ALJ) held in part that the Facebook activity was concerted activity because:
  • It involved current employees.
  • It was part of an ongoing discussion that started in the workplace about employee tax withholdings.
  • The participants were seeking to initiate, induce or prepare for group action, evidenced by their discussion of:
    • issues they intended to raise at a staff meeting; and
    • possible complaints to government agencies.
The ALJ also held that:
  • The concerted activity was protected because it concerned workplace complaints about wages and taxes.
  • By clicking that he "Liked" the comment from LaFrance, Spinella:
    • expressed support for others who were sharing their concerns; and
    • participated in the discussion to a level that rose to concerted protected activity.
  • The employees did not lose the protections of the NLRA under the standards set forth in:
  • The employer unlawfully discharged Sanzone and Spinella for their participation in the Facebook discussion.
The employer and the NLRB's General Counsel filed exceptions. The employer did not dispute that the employees' activity on Facebook was concerted or that the employees had the right to discuss tax withholding on Facebook. The employer argued that because of their Facebook activity, Spinella and Sanzone lost protection of the NLRA by:
  • Adopting LaFrance's defamatory and disparaging comments.
  • Making the comments in a public forum.
  • Undermining DelBuono's workplace authority.
  • Adversely affecting the employer's image.

Outcome

A three-member Board panel (Members Miscimarra, Hirozawa and Schiffer) affirmed the ALJ's holdings that:
  • The employees' Facebook activity did not lose the protection of the NLRA.
  • The employer violated the NLRA by:
    • discharging Spinella and Sanzone;
    • threatening employees with discharge for their Facebook activity;
    • interrogating employees about their Facebook activity; and
    • threatening legal action against Spinella for his Facebook activity.
A majority (Members Hirozawa and Schiffer):
  • Held that the employer violated the NLRA by informing employees they were being discharged because of their Facebook activity.
  • Declined to consider whether Triple D violated the NLRA by threatening legal action against Sanzone.
  • Reversed part of the ALJ's holding, and found that the employer violated 8(a)(1) by maintaining its Internet/Blogging policy.
The Board panel unanimously held that it should apply Jefferson Standard and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966), not Atlantic Steel when determining whether employees' concerted activity on social media, such as comments or "likes," loses the NLRA's protection because:
  • Typically, the Board has applied Atlantic Steel to analyze whether direct communications between an employee and manager at the workplace lead to the loss of protection. The Atlantic Steel test was inapposite because the Board does not usually apply it to communication with third parties.
  • Jefferson Standard and Linn balance the employer's interest in preventing disparagement and damaged reputation with the employees' Section 7 rights.
The Board noted that:
  • Under Jefferson Standard, employers may lawfully discharge employees who disloyally disparage of the products and business practices of an employer without relating their complaints to a labor issue. These actions fall outside of the NLRA's protection. (346 U.S. at 475–477.)
  • Under Linn, which involved a union's alleged defamation against an employer in the course of an organizing campaign, state-law defamation remedies were limited to those instances where an employer could show that defamatory statements were made with malice and caused damage. A statement had malice if it was made with knowledge of falsity or reckless disregard for its truth. (383 U.S. at 64–65.)
The Board found that:
  • Sanzone's comment was an endorsement of LaFrance's complaint regarding DelBuono's tax-withholding mistake.
  • Spinella's "Like" expressed agreement only with LaFrance's original comment.
  • Neither Sanzone or Spinella could be held responsible and lose the NLRA's protections due to others' protected or arguably unprotected comments in the Facebook discussion.
  • Sanzone's comment and Spinella's "Like" differ from the unprotected disparaging comments in Jefferson Standard because:
    • they discuss or relate to an ongoing labor dispute about tax withholding;
    • record evidence does not show that the discussion was directed to the public, but were more akin to a conversation that might be heard by a third party;
    • the comments did not disparage the company's products or services; and
    • the comments were looking towards group action to encourage the employer to address employees' concerns about terms and conditions of employment, namely employees' income tax liability due to purported employer errors.
    Since the activity was protected concerted activity and did not lose protection under the NLRA, the Board affirmed that the discharge of Spinella and Sanzone violated NLRA Section 8(a)(1).
The Board majority reversed the ALJ's dismissal of the allegation about the employer's Internet/Blogging policy:
  • Noting that a rule that does not expressly prohibit employees from exercising NLRA Section 7 rights, may nevertheless chill employees' exercise of those rights and be unlawful if:
    • an employee would reasonably construe the rule's language to prohibit Section 7 activity;
    • the rule was promulgated in response to union activity; or
    • the rule has been applied to restrict the exercise of Section 7 activity.
    (Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 646 (2004).)
  • Holding that Triple D's Internet/Blogging policy was overbroad because it could be reasonably interpreted to include protected activity. In particular, it found that:
    • the policy is vague because it does not define what discussions are considered "inappropriate";
    • employees can understand the vague term "inappropriate" to encompass discussions protected by Section 7;
    • the discharge of Sanzone and Spinella for Facebook activity gives employees a clear indication that the policy's prohibition could include the protected Facebook discussion like those about tax issues in this case;
    • the plain language of the policy states that employees can be subject to discipline for inappropriate activity, not just unlawful inappropriate activity (as the ALJ and dissent found); and
    • many Board decisions have found a rule unlawful if employees would reasonably interpret it to prohibit protected activities.
In partial dissent, Member Miscimarra disagreed with the majority's finding that the employer's Internet/Blogging policy violated the NLRA, noting that the policy:
  • Does not explicitly restrict Section 7 activity.
  • Was not promulgated in response to restrictive activity.
  • Has not been applied to restrict protected activity
  • Does not contain language that would reasonably be construed by employees to be prohibitive of Section 7 activity. In particular he found that:
    • the word "inappropriate" is not too imprecise and was paired with descriptions of unlawful activities making its meaning even clearer; and
    • the Spinella and Sanzone discharge violations should not be boot-strapped to considerations of how employees would reasonably construe the policy because they were not discharged for violations of the policy but rather for their concerted protected activity that the employer perceived as defamatory.
  • Was aimed at preventing employees from:
    • revealing proprietary or confidential information; and
    • making statements about the company, management and employees that may be unlawful.
Member Miscimarra also urged that the Board reconsider Lutheran Heritage and if it chooses to continue applying it, should stop doing so incorrectly. He asserted that the Board majority in this case and Board panels in several cases since 2011 have utilized a hybrid test of prongs one and three of Lutheran Heritage, in contrast to the separation of prongs that was intended in that case. Miscimarra notes under the Board majority's framework, an employer rule can be found unlawful based on a mixture of the rule's language and the employer's misconduct, despite the rule:
  • Not being unlawful on its face.
  • Not having been applied to restrict the exercise of Section 7 rights.
In addition, Member Miscimarra:
  • Would have dismissed the allegation that Triple D unlawfully threatened Sanzone with litigation. Its attorneys wrote a letter warning of a prospective defamation claim and there was no record evidence suggesting any other purpose for the letter than complying with a state law prerequisite for filing that kind of lawsuit.
  • Would have found that advising employees of the reason for their discharge was part of the prohibited unlawful termination action and was subsumed by that violation.
  • In dicta, noted that concerted social media communications may lose the NLRA's protection where they are so egregious as to take them outside the NLRA's protection and render the employee unfit for further service (Neff-Perkins Co., 315 N.L.R.B. 1229 (1994)).
Update: On October 21, 2015, the US Court of Appeals for the Second Circuit issued a non-precedential summary order affirming the Board's August 22, 2014 Decision and Order. (Three D, LLC v. N.L.R.B., No. 14-3284, (2d Cir. Oct. 21, 2015).)

Practical Implications

This decision:
  • Acknowledges that an employee may engage in concerted activity simply by pressing a "Like" button in social media.
  • Explains that the Board will look at the nature of a Facebook or other social media discussion to decide whether it constitutes concerted activity, for example because it concerns:
    • a labor dispute; or
    • terms and conditions of employment.
  • Clarifies that the Board will interpret a "Like" as approving only the comment to which it was attached and not the entire conversation in which that comment and "Like" exist.
  • Sets Jefferson Standard and Linn as the framework under which the Board will evaluate whether employees' arguably disloyal or defamatory concerted social media comments may lose NLRA protection. Accordingly, false (but not malevolently or recklessly false) statements that are part of a labor dispute and disparage an employer, its agents or its business operations are generally protected.
  • Illustrates that the Board will not readily find an employee's concerted social media communications unprotected even if the communications:
    • contain expletives;
    • are inadvertently seen heard or read by a larger than intended audience, including customers and other non-employees; or
    • are within discussions that contain others' arguably unprotected comments.
The Board majority continues not to set a benchmark for how much or how severe an employee's use of expletives in the presence of customers might render protected activity unprotected (see Legal Update, Wobbly-supporting Barista Remained NLRA-protected Despite Profane Customer-facing Outburst: NLRB). However, Member Miscimarra continues to remind the Board that there is a standard for egregious concerted conduct in the presence of customers at least in the retail context and advocate in dissenting opinions that the Board set thresholds in other contexts including on social media.
The majority's analysis of the Internet/Blogging policy continues the trend of the Board effectively presuming that employees would interpret a policy's catch-all or generic phrases, designed to give employers flexibility to apply them to unanticipated situations, as prohibiting Section 7 activity. The majority finds "inappropriate discussions," too imprecise to be lawful and focuses on how it could be interpreted rather than how employees would reasonably interpret it in context.