The National Labor Relations Board continues to be laser-focused on the issue of employers disciplining employees for comments made in social media. It filed numerous complaints against employers in the past year. Although the decisions are very fact-specific, they share key points for employers to remember.
The recent decision against non-union retailer Bettie Page is instructive. In Design Technology Group, LLC et al., Case 20-CA-35511 (Apr. 27, 2012), the Administrative Law Judge found that Bettie Page engaged in unfair labor practices when it discharged three employees who engaged in protected concerted activity through discussions on Facebook. The decision ordered ...view middle of the document...
[Employee 2]: She already is girl!
[Employee 1]: 800 miles away yet she’s still continues our lives miserable. Phenomenal!
[Employee 2]: And no one’s doing anything about it! Big surprise!
[Employee 3]: “Bettie Page would roll over in her grave.” I’ve been thinking the same thing for quite some time.
[Employee 1]: 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) see you tomorrow!
Once the company learned of the posts, the first two employees to be terminated were “employees 1 & 2”, shortly thereafter “employee 3” was terminated.
The decision of NLRB concluded that the Facebook comments were protected concerted activity because the postings were a continuation of the employees’ efforts to raise concerns about working late in an unsafe neighborhood. Section 7 of the National Labor Relations Act protects concerted employee activity, regardless of whether a union represents the employees.
I absolutely agree with the decision of the NLRB and since the burden of proof is on the employer, Bettie Paige was not able to provide the proof that even if the employees had not been engaged in protected concerted activity they would have been fired. Therefore I think it was correct for her to be ordered to reinstate their jobs either in the same...