Hispanics United and the Deep Freeze on Social Media: If an Employee Gripes in the Woods and No Coworker Hears it, Was There Concerted Action?

Abstract

Section 7 of the United States’ National Labor Relations Act allows groups of American workers to engage in concerted activity for the purposes of collective bargaining or for “other mutual aid or protection.” This latter protection has been applied in cases such as Lafayette Park Hotel to extend the Act’s protection to workers outside the union context, finding unfair labor practices where employers retaliated against employees who acting in concert for each other’s aid, or for the benefit of themselves and all their co-workers. Starting in the 2005 and ramping up to the present, the National Labor Relations Board has increasingly signaled to employers that concerted activity may take place on social media such as Facebook. However, the Board proper delivered its first written opinion articulating these rules in the 2012 case of Hispanics United of Buffalo, Inc. There, the Board found the employer in question to have committed multiple unfair labor practices when it fired five employees over a series of Facebook posts due to violating the employer’s zero-tolerance no-bullying policy. This article argues that the majority opinion of the Board misapplied Lafayette Park Hotel’s test for whether employer conduct “would reasonably tend to chill employees” from legitimate, protected uses of their §7 rights. Picking up the strings from dissenting Board member Hayes’ opinion, this article explains the two largest errors in the Board’s decision: (1) a failure to identify a missing, important element for concerted activity protection under §7, the nexus between employee discussion and contemplated group action, and (2) asserting an “inferred group intent” existed that was “implicitly manifest” which linked the employees’ Facebook posts to contemplated group action protected under §7. However, all members of the entire Board, as well as other legal scholars writing on this topic, have been guilty at different times of ignoring social media’s unique facets, often simplifying it to being like a “virtual water cooler” for the 21st century. The facts in Hispanics United show why this analogy does not work: rather than a short face-to-face conversation with a finite, known audience in the space of minutes, it was a series of written messages plopped down in sequential order throughout an entire day, written for an audience of unknown size and make-up that may not even include the co-workers it ostensibly addressed. Hispanics United shows exactly why the nexus requirement is needed in Lafayette's chilling test. Legal scholars have already examined the National Labor Relations Board's rulings, decisions, and other forms of guidance prior to Hispanics United that tried to apply § 7 to social media and revealed the Board's struggle to provide consistent, predictable results along a set of clear rules. Based on what Hispanics United teaches us, the proper handling of employer retaliation based on social media does not mean reinventing the wheel by relaxing the nexus requirement to the point of irrelevance. Instead, the answer is simply to put that wheel back on its axel: a sensible application of the nexus requirement, with an appreciation for how much water coolers are not at all identical to individuals' news feeds on Facebook.