Tuesday, September 6, 2011

Judge Issues NLRA Facebook Decision

Phew, keeping up with NLRA social media developments could be its own full-time job. This afternoon, the NLRB issued a press release announcing the "first case involving Facebook to have resulted in an ALJ (Administrative Law Judge) decision following a hearing." The case is Hispanics United of Buffalo v. Ortiz, 03-CA-027872. You can read the full 14-page decision here.

This case has been floating around for awhile. In a previous post, I addressed NLRA-protected social media conduct. In short, I wrote that protected activity: 1. addresses working conditions; and 2. involves other employees. With that in mind, here's the actual Facebook thread from Hispanics United of Buffalo (HUB):

[Note: This thread was precipitated by Lydia Cruz-Moore frequently criticizing HUB employees' performance]
On Saturday, October 9, 2010 at 10:14 a.m., Mariana Cole-Rivera posted the following message on her Facebook page from her home:
Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?

The following employees responded by posting comments on Cole-Rivera's Facebook page:

At 10:19, Damicela Rodriguez (also known as Damicela Pedroza Natal) posted the following response:
What the f. .. Try doing my job I have 5 programs

At 10:26, Ludimar (Ludahy) Rodriguez posted:
What the Hell, we don't have a life as is, What else can we do???

At 11: 11, Yaritza (M Ntal) Campos posted:
Tell her to come do mt [my] fucking job n c if I don't do enough, this is just dum

At 11:41, Carlos Ortiz de Jesus posted:
I think we should give our paychecks to our clients so they can "pay" the rent, also we can take them to their Dr's appts, and served as translators (oh! We do that). Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in their house watching tv, and also we can go to do their grocery shop and organized the food in their house pantries ... (insert sarcasm here now)

Mariana Cole-Rivera posted again at 11:45:
Lol. I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do ..I will give her that. Clients will complain especially when they ask for services we don't provide, like washer, dryers stove and refrigerators, I'm proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human :) love ya guys

Nannette Dorrios, a member of the Board of Directors at HUB posted at 12:10:
Who is Lydia Cruz?

Yaritza Campos posted a second time at 12:11:
Luv ya too boo

Mariana Cole-Rivera at 12:12 responded to Dorrios by the following post:
She's from the dv program works at the FJC [Family Justice Center] at hub once a week.

Jessica Rivera, the Secretary to HUD Director Iglesias, posted at 1: 10 p.m.
Is it not overwhelming enough over there?

At 2:27 Lydia Cruz-Moore posted:
Marianna stop with ur lies about me. I'll b at HUB Tuesday..

Cole-Rivera responded at 2:56:
Lies? Ok. In any case Lydia, Magalie [Lomax, HUB'S Business Manager] is inviting us over to her house today after 6:00 pm and wanted to invite you but does not have your number i'll inbox you her phone number if you wish.

Carlos Ortiz posted at 10:30 p.m.
Bueno el martes llevo el pop corn [Good, Tuesday, I'll bring the popcorn].
The Employer then terminated employees who participated in the thread for "bullying and harassment."  What do you think? NLRA-protected social media conduct? The initial post sets the tone as it expressly 1. seeks input from other employees; 2. on workplace issues. And, co-workers did respond with discussion about the workplace, albeit somewhat poorly worded (i.e. "come do [my] fucking job n c if I don't do enough").

Sounds protected to me, and the ALJ agrees:
[The employees] were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management. By discharging [the Employees, the Employer] prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms.
Now, what's the remedy in this matter? The ALJ directed the Employer to reinstate the fired employees, and "make them whole" by compensating them for lost earnings, backpay, and other benefits - with interest. The decision also includes an order directing the Employer to post a notice regarding NLRA rights drafted by the ALJ and included as an appendix to the decision.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.