## Facts

- Hispanics United of Buffalo, Inc., a nonprofit social services agency, employed five caseworkers/advocates.
- A coworker, Lydia Cruz-Moore, criticized coworkers’ job performance and indicated she would complain to the executive director about them.
- In response, Marianna Cole-Rivera posted on Facebook asking coworkers how they felt about Cruz’s accusation that they did not help clients enough.
- Four coworkers replied, generally defending their work, objecting to Cruz’s criticism, and discussing workload, client volume, and staffing shortages.
- Cruz complained to the executive director that the Facebook comments were harassment and bullying.
- After reviewing the posts, the executive director concluded the employees violated the employer’s “zero tolerance” harassment policy and discharged all five participants.
- An unfair labor practice charge alleged the discharges interfered with protected concerted activity under NLRA § 7, in violation of § 8(a)(1).

## Issues

1. Whether the employees’ Facebook discussion constituted “concerted activity” under NLRA § 7.
2. Whether the discussion concerned “mutual aid or protection” by addressing terms and conditions of employment.
3. Whether the posts lost NLRA protection because they allegedly violated the employer’s anti-harassment policy or were sufficiently opprobrious.

## Decision

- The NLRB affirmed the finding that the Facebook postings were protected concerted activity under § 7.
- The NLRB held the employer violated § 8(a)(1) by discharging the five employees for engaging in that protected activity.
- The NLRB ordered reinstatement and make-whole relief (including backpay with interest), expungement of discharge references from personnel files, and a notice posting.

## Legal Principles

- Employee communications are concerted when they seek to initiate, induce, or prepare for group action, or when they involve group complaints to management.
- Discussions among coworkers about job performance criticism, workload, staffing, and client caseload are terms and conditions of employment and may constitute activity for mutual aid or protection.
- NLRA § 7 protection applies to employee discussions occurring on social media as well as in-person workplace conversations.
- An employer may not discipline employees for protected concerted activity by characterizing the conduct as a policy violation; protection is lost only where conduct is sufficiently egregious (e.g., threats or extreme personal attacks), not where employees express frustration while discussing workplace issues.
- Discharging employees because they engaged in protected concerted activity constitutes interference with § 7 rights and violates § 8(a)(1).

## Conclusion

The NLRB held that employees’ Facebook responses to a coworker’s threatened complaint to management—defending their performance and discussing workload and staffing—were protected concerted activity, and that terminating them under an anti-harassment policy unlawfully interfered with their NLRA § 7 rights in violation of § 8(a)(1).


Hispanics United of Buffalo, Inc., 359 N.L.R.B. 368 (2012)