By: Jill Barbarino and Steven M. Swirsky

In a recent decision involving social media posts by non-union employees, as well as employer rules prohibiting the sharing of information about compensation among co-workers and with non-employees, the NLRB affirmed the findings and proposed remedy recommended by a Board Administrative Law Judge,  holding that the Facebook posts of three employees of an upscale clothing boutique in San Francisco constituted protected activity under Section 7 of the National Labor Relations Act and the termination of the employees’ for the posts was an unfair labor practice under Section 8(a)(1) of the Act.

Significantly, a unanimous three member panel found that the Facebook posts were a “continuation” of the employees’ effort to present their concerns about safety and other working conditions to their employer, the postings were “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns,” and even without the related activity of the employees at work, “the Facebook postings would have constituted protected activity in and of themselves.”

Not only did the Board order the employer to rescind the portions of its employee handbook that the Board found violated the Act as it applied at the location where the charging party and her co-workers had been employed, the Board also agreed with the General Counsel that the employer be ordered to rescind and replace the rules in question on a company-wide basis, explaining why it was doing so to all of its employees.

The employer, Design Technology Group, LLC, d/b/a Bettie Page Clothing, is a wholesale and retail clothing sales company with operations in several states, including an upscale women’s clothing store in San Francisco. Shortly after that store opened, an employee, Holli Thomas, asked both the owner of Bettie Page and the store’s manager, whether the store could close at 7 p.m. instead of 8 p.m. because employees working late at night were being harassed by people on the street after tourists had left the neighborhood and were concerned about their safety. Following a disagreement with the store manager about the request, Thomas, and two other employees, Vanessa Morris and Brittany Johnson, engaged in the following conversation on Facebook:

Holli Thomas – needs a new job. I’m physically and mentally sickened.

Vanessa Morris – It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime [sic] we try to solve conflicts NOTHING GETS DONE!!

Holli Thomas – bettie page would role over in her grave.

Vanessa Morris: She already is girl!

Holli Thomas – 800 miles away yet she’s still continues our lives miserable. Phenomenal!

Vanessa Morris – And no one’s doing anything about it! Big surprise!

Brittany Johnson – “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.

Vanessa Morris – hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) [sic] see you tomorrow!

Six days after the posts, Thomas and Morris were terminated. Johnson was terminated about a month later.

The Board agreed with the ALJ that Thomas and Morris were engaged in “protected concerted activity when they presented concerns of the employees about working late in an unsafe neighborhood to their supervisor and to the Respondent’s owner and that their Facebook postings were a continuation of that effort.”

The Board went even further to hold that “the Facebook postings would have constituted protected concerted activity in and of themselves” because the postings were “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns.”

Finally, the Board held that the conversation about looking at a book relating to California labor law was “classic concerted protected activity” because the conversation related to the “mutual aid and protection” of employees.

The Board also rejected Bettie Page’s argument that the posts were a scheme to entrap Bettie Page into firing them. The Board stated that this argument lacked evidentiary support and even if the employees had posted the comments in the hope that they would be discharged, Bettie Page failed to establish that such conduct was not protected activity under the Act.

In addition, the Board agreed with the ALJ that the provision in Bettie Page’s handbook stating that “[d]isclosure of wages or compensation to any third party or other employee is prohibited and grounds for termination” should be rescinded.  The Board also ordered Bettie Page to post a company-wide notice regarding the unlawful handbook provision because the policy had applied not only to Bettie Page’s San Francisco store at issue in the case, but to all other store locations.

This decision evidences the Board’s recent, aggressive approach to social media posts of employees discussing workplace concerns, as well as the application of the NLRA to non-union employees.

In deciding whether to terminate, discipline, or take adverse action against an employee for social media postings, employers must carefully review whether the employee’s conversations, comments, or posts may constitute protected concerted activity under the NLRA.

Click here for additional information on the Board’s position on social media issues.