NLRB Advice Memo Concludes Facebook Post Not Unlawful

In another in a series of advice memoranda from the NLRB regarding social media, the NLRB concluded the discharge of a crane operator because of his Facebook did not violate the NLRA because there was no protected concerted activity.  The Advice Memorandum, regarding Helser Industries, is here.

A co-worker of the crane operator informed a supervisor that the operator nearly struck an employee and knocked over a welding machine with a crane.  Angry at being reported and not allowed to go home to “cool off,”  the operator then knocked over two work horses with the crane.  The supervisor yelled at the operator and had to finished the crane work when the operator walked away.

The next day, a non-working day, the operator posted the following statements to his Facebook account:

yeah I got a fucking attitude about where I work today.  a coworker ran into the office when they witnessed me knocking over a welding machine accidentally.  people who pull this stuff irk me greatly.  they don’t have the capacity to mind their own buss

weekends work wonders

if i snap, helser industries will be making national headlines

A coworker posted the following:

Do you need an intervention?  Maybe you need to go see a DR. and get some relief.  You might need some time out.  The bottom line it is only work and all they can do is send you packing.  that won’t happen so take a chill pill.  There are more things to worry about than work.  There is life beyond that place.  Besides time heals all wounds.

Helsel discharged the operator when it learned of his posts.

Associate General Counsel Kearney concluded that the operator’s complaints were an expression of an individual gripe and not protected concerted activity because (a) the posts contained no language suggesting the operator sought to initiate or induce group action and (b) there was no evidence that coworkers interpreted the postings as a call for group action or that any coworkers shared his concerns.

This Memorandum is good news for employers.  As in Lee enterprises, Inc. d/b/a Arizona Daily Star, Rural Metro, and JT’s Porch Saloon & Eatery,  LTD, this case reflects what appears to be the Board’s recognition that social media posts that reference workplace matters do not necessarily constitute protected activity; there still must be evidence the the conduct is concerted.   At the same time, these cases are very fact-intensive and this case easily could have come out differently if the coworker’s post had been worded slightly differently.

All employers (the NLRA protection for concerted activity applies to non-union and union employees) confronted with inappropriate social media posts, tweets, or other activity need to carefully analyze the content and circumstances of the conduct to determine if the activity is concerted and, if it is protected, whether the protection was somehow lost.

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