Law360, New York (April 24, 2013, 2:46 PM ET) -- The National Labor Relations Board on Friday said that Facebook posts by employees criticizing the manager of a San Francisco clothing boutique's handling of employee concerns were a “classic concerted protected activity,” ruling the store had unlawfully fired the workers who penned the posts.
The NLRB agreed with an administrative law judge's ruling that the Facebook posts were part of the employees' efforts to get Bettie Page Clothing to close earlier in the evening based on concerns about working late in an unsafe neighborhood, and that as such, the store had committed an unfair labor practice when it fired the workers. But the board went a step further than the judge, saying the posts themselves — which included a discussion of bringing an employee rights handbook to the store — constituted protected concerted activity under the National Labor Relations Act.
“The Facebook 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,” the board's decision said. “Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.”
According to the judge's decision, the workers had asked their manager if the store could close at 7 p.m. instead of 8 p.m. because other stores in the Haight-Ashbury neighborhood were closing earlier and street people occasionally harassed the employees from outside the store, which had no security system. The manger said she would discuss it with corporate officials, but there was no resolution, the decision said.
One day when the manager was out of town, two of the employees who were later terminated, Vanessa Morris and Holli Thomas, were working together, and Thomas had telephone discussions with the store's owner and its human resources consultant about closing the store early, which led to angry phone calls with the manager, the decision said.
That night, Morris Thomas and Brittany Johnson — a third employee who was also eventually fired — posted several messages on Facebook critical of the manager, including one in which Morris said, “Tomorrow I’m bringing a California workers 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,” according to the decision.
Another employee who was friendly with the manager showed her the posts, and the manager contacted the human resources consultant, who sent copies of the postings to the store's owner, the decision said. Six days later, the manager fired both Thomas and Morris, it said.
Johnson was fired afterward, allegedly because of chronic lateness.
The NLRB, like the judge, rejected the employer's argument that the posts were intended not for employees' mutual aid and protection but to entrap the employer into firing them.
The board found that the posts were protected by federal labor law and that as such Morris and Thomas should not have been fired because of them. As for, Johnson the board found that the store enforced its policy on lateness inconsistently and that she was actually unlawfully fired for her association with the other two workers.
The board ordered the store to reinstate all three employees and to give them back pay.
“This decision is indicative that if employers fire people for things they put on their Facebook accounts about workplace issues, that's unlawful,” David A. Rosenfeld of Weinberg Roger & Rosenfeld PC, who represents the workers, told Law360.
An attorney for the employer, however, said the store planned to appeal.
“Bettie Page Clothing disagrees with the ruling and intends to file an appeal both on the merits of the decision and the authority of the recess-appointment board members who rendered the decision,” David R. Koch of Koch & Scow LLC said. “Bettie Page Clothing looks forward to an objective venue before the appropriate appellate court.”
The decision marks the NLRB's third ruling on firings that stemmed from Facebook posts.
In the first decision, issued in October, the board concluded that posts by a salesman at Karl Knauz Motors Inc. regarding an accident at an adjacent Land Rover dealership also owned by the company were not protected by the law, and that his termination was therefore lawful.
The board's second decision on Facebook-related firings held that nonprofit Hispanics United of Buffalo Inc. ran afoul of the NLRA when it axed five workers for Facebook comments responding to a co-worker's criticisms of their job performance. The posts were protected because they were the workers' first step toward group action to defend themselves against accusations they could reasonably have believed the co-worker would make to management, the board found.
The employees in the instant suit are represented by David A. Rosenfeld and Nina A. Fendel of Weinberg Roger & Rosenfeld PC.
Bettie Page Clothing is represented by David R. Koch of Koch & Scow LLC.
The case is Design Technology Group LLC d/b/a Bettie Page Clothing, case number 20-CA-35511, before the National Labor Relations Board.
--Editing by Eydie Cubarrubia.
The NLRB agreed with an administrative law judge's ruling that the Facebook posts were part of the employees' efforts to get Bettie Page Clothing to close earlier in the evening based on concerns about working late in an unsafe neighborhood, and that as such, the store had committed an unfair labor practice when it fired the workers. But the board went a step further than the judge, saying the posts themselves — which included a discussion of bringing an employee rights handbook to the store — constituted protected concerted activity under the National Labor Relations Act.
“The Facebook 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,” the board's decision said. “Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.”
According to the judge's decision, the workers had asked their manager if the store could close at 7 p.m. instead of 8 p.m. because other stores in the Haight-Ashbury neighborhood were closing earlier and street people occasionally harassed the employees from outside the store, which had no security system. The manger said she would discuss it with corporate officials, but there was no resolution, the decision said.
One day when the manager was out of town, two of the employees who were later terminated, Vanessa Morris and Holli Thomas, were working together, and Thomas had telephone discussions with the store's owner and its human resources consultant about closing the store early, which led to angry phone calls with the manager, the decision said.
That night, Morris Thomas and Brittany Johnson — a third employee who was also eventually fired — posted several messages on Facebook critical of the manager, including one in which Morris said, “Tomorrow I’m bringing a California workers 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,” according to the decision.
Another employee who was friendly with the manager showed her the posts, and the manager contacted the human resources consultant, who sent copies of the postings to the store's owner, the decision said. Six days later, the manager fired both Thomas and Morris, it said.
Johnson was fired afterward, allegedly because of chronic lateness.
The NLRB, like the judge, rejected the employer's argument that the posts were intended not for employees' mutual aid and protection but to entrap the employer into firing them.
The board found that the posts were protected by federal labor law and that as such Morris and Thomas should not have been fired because of them. As for, Johnson the board found that the store enforced its policy on lateness inconsistently and that she was actually unlawfully fired for her association with the other two workers.
The board ordered the store to reinstate all three employees and to give them back pay.
“This decision is indicative that if employers fire people for things they put on their Facebook accounts about workplace issues, that's unlawful,” David A. Rosenfeld of Weinberg Roger & Rosenfeld PC, who represents the workers, told Law360.
An attorney for the employer, however, said the store planned to appeal.
“Bettie Page Clothing disagrees with the ruling and intends to file an appeal both on the merits of the decision and the authority of the recess-appointment board members who rendered the decision,” David R. Koch of Koch & Scow LLC said. “Bettie Page Clothing looks forward to an objective venue before the appropriate appellate court.”
The decision marks the NLRB's third ruling on firings that stemmed from Facebook posts.
In the first decision, issued in October, the board concluded that posts by a salesman at Karl Knauz Motors Inc. regarding an accident at an adjacent Land Rover dealership also owned by the company were not protected by the law, and that his termination was therefore lawful.
The board's second decision on Facebook-related firings held that nonprofit Hispanics United of Buffalo Inc. ran afoul of the NLRA when it axed five workers for Facebook comments responding to a co-worker's criticisms of their job performance. The posts were protected because they were the workers' first step toward group action to defend themselves against accusations they could reasonably have believed the co-worker would make to management, the board found.
The employees in the instant suit are represented by David A. Rosenfeld and Nina A. Fendel of Weinberg Roger & Rosenfeld PC.
Bettie Page Clothing is represented by David R. Koch of Koch & Scow LLC.
The case is Design Technology Group LLC d/b/a Bettie Page Clothing, case number 20-CA-35511, before the National Labor Relations Board.
--Editing by Eydie Cubarrubia.
Email offtherecord@law360.com.
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