In Hispanics United of Buffalo, Inc., the third NLRB decision concerning employees' use of social media, the NLRB considered whether employees' off-duty comments on Facebook speech were protected concerted activity under the NLRA. Specifically, the key litigated issues were whether:

Two employees of Hispanics United of Buffalo, Inc., Lydia Cruz-Moore (Cruz) and Marianna Cole-Rivera (Cole) frequently communicated with each other by phone and text message during and after work hours. According to Cole, Cruz often criticized other employees during these conversations who in her view did not adequately serve clients. Other employees testified that Cruz engaged in such criticism.

In October 2010, Cruz sent a text message to Cole, stating that she was going to discuss her concerns about employee performance with the Executive Director of Hispanics United. From her personal computer, Cole placed the following post on her Facebook page: "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?" In response to this statement, four off-duty employees of Hispanics United added comments to Cole's Facebook page, expressing their disagreement with Cruz's opinion of their job performance.

Cruz posted a request on Cole's Facebook page that Cole stop lying about her. Cruz complained to the Executive Director about the Facebook comments, and at the Executive Director's request provided her with a printed copy of Cole's Facebook message and the subsequent comments. Shortly thereafter, the Executive Director terminated Cole and the four employees who commented on Cole's Facebook page because their statements constituted bullying and harassment of a coworker, which violated Hispanics United's zero tolerance policy prohibiting such conduct. The Facebook post and comments were the sole reason why the employees were terminated.

The General Counsel of the NLRB issued a complaint alleging that Hispanics United violated Section 8(a)(1) of the NLRA by terminating the employees for engaging in protected concerted activity.

An NLRB administrative law judge (ALJ) held that Hispanics United violated Section 8(a)(1), because the employees were punished for engaging in protected concerted activity under Section 7 of the NLRA. The ALJ found a single employee can engage in concerted activity if he seeks to enlist the support of employees in mutual aid and protection. Furthermore, the NLRA protects communications between employees regarding matters affecting their employment, even when:

The ALJ also found that the employees' communications here were not so opprobrious, under the factors established in Atlantic Steel, as to lose the protection of the Act. Finally, the communications did not violate the Hispanics United harassment policy.

Hispanics United filed exceptions to the ALJ's decision with the panel heading the NLRB's judicial functions (Board).

In a decision dated December 14, 2012, the Board issued an opinion in the case, and a three-member majority affirmed the order of the ALJ.

In Meyers Industries (Meyers I), the Board held that the discipline or discharge of an employee violates Section 8(a)(1) of the NLRA if four elements are satisfied:

Only the first and third elements were in dispute in this case.

Regarding the first element, the Board held that the employees engaged in concerted activity when they posted and commented on their work performance on Facebook. In Meyers I, the Board wrote that concerted activity is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." In the Board's second decision in Meyers Industries (Meyers II), the Board defined concerted activity as "circumstances where individual employees seek to initiate or to induce or to prepare for group action."

Here, Cole told her co-workers about Cruz's assessment of them and solicited their views. By responding with comments of protest on Facebook, the employees made common cause with Cole, thereby meeting the definition of Meyers I. The Facebook post and comments also fit within the definition of concerted activity discussed in Meyers II, because they were a first step toward group action to defend themselves against accusations they anticipated.

The majority explained that employees need not explicitly state that group action is the purpose of a joint communication for it to be concerted activity. For example, the Board held in Relco Locomotives, Inc., that employee communications are "indispensable steps" toward concerted activity when they discuss concerns regarding the rumored discharge of an employee, even though the employees had not yet taken their concerns to management. Here, Cole's goal of providing mutual aid by preparing her coworkers for group action was "implicitly manifest" in the circumstances. Therefore, Cole did not have to discuss this goal or tell her coworkers that it was necessary because of Cruz's impending visit with the Executive Director (see Timekeeping Systems, Inc.).

Regarding the third element of a Section 8(a)(1) violation, the Board held that the Facebook discussion was protected activity under the NLRA, because Section 7 protects employees' job performance discussions. Since the Facebook discussion dealt with allegations of unsatisfactory work, it was protected activity taken for the "employees' mutual aid of each other's defense of those criticisms."

Hispanics United argued that it was justified in terminating the employees, regardless of where their conversation took place, because their comments constituted unprotected harassment and bullying of Cruz, in violation of its zero-tolerance policy. The ALJ and the Board rejected this argument because the Facebook communications did not meet the definition of harassment under the employer's policy, but even if they did, Hispanics United must apply its policy with reference to Board law (Consolidated Diesel). Therefore, Hispanics United could not discipline the employees solely because of their coworker's subjective reaction to the Facebook communications (see Consolidated Diesel)).

Because the Facebook post and comments were concerted and protected under the NLRA, Hispanics United violated Section 8(a)(1) of the NLRA when it discharged the employees.

The Board found, contrary to the ALJ, that it was unnecessary to analyze the case under Atlantic Steel because Hispanics United claimed that employees' Facebook contacts were never protected and not that they were protected but lost protection because of employee misconduct.

In his dissenting opinion, Member Hayes argued that the employees' Facebook discussion was not concerted because it was not done for the purpose of "mutual aid or protection," since Cole did not tell her coworkers that Cruz was going to speak to the Executive Director. In fact, the ALJ discredited testimony that Cruz intended to take to the Executive Director about Cruz's complaint.

Hispanics United confirms that:

An employee's Facebook post about the terms and conditions of employment constitutes concerted protected activity. Employers must be careful when enforcing anti-harassment policies to avoid infringing on an employees' rights under Section 7 of the NLRA.