Why it matters

In a new advice memoranda from the National Labor Relations Board (NLRB) Office of the General Counsel, the general counsel considered whether an employee at H&M Construction engaged in protected concerted activity by posting comments on Facebook about how the company’s employees were treated by their general contractor. Determining that the remarks were not a personal gripe but concerted activity for mutual aid, the GC found that the employer violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by laying off the employee who made the social media posts.

Detailed discussion

Georgia Pacific (GP) contracted out to H&M Construction the on-site landfill management services for a paper mill in Alabama. In 2015, an H&M equipment operator at the landfill saw a sign announcing a Veterans Day function for GP’s veteran employees but not for veteran employees of its contractor.

The employee mentioned the sign to a co-worker who was a veteran, who responded “that’s bulls***.” A few days later, GP displayed on its Facebook page posts featuring and praising some of its veteran employees, including one about a worker at a nearby mill. The H&M employee commented on the post:

“Yeah well I think it’s cheesy that at yalls mill in AL y’all are gonna have a little get together for the ‘mill hand’ veterans, but not the in house contractors that work at the mill everyday that are veterans. Yeah that’s pretty disgusting if you ask me.”

He later added another comment: “Oops well I’m not gonna give special treatment to some veterans just because of where they work. They all deserve equal respect SMFH [shaking my freaking head].”

A corporate public relations employee for GP saw the posts, and the GP supervisor informed an H&M supervisor about the Facebook comments. Although the GP supervisor did not ask or instruct H&M to take any personnel action against the employee, the H&M supervisor determined it “would be unwise” for the employee to return to the mill and that the employee should be laid off.

The employee was called to the mill office and told he was being let go because of the Facebook posts, with the H&M supervisor stating the order came from “higher up.” In response, the employee filed a charge under Section 8(a)(1) of the National Labor Relations Act (NLRA).

Section 7 of the NLRA provides that employees have the right to engage in concerted activities for mutual aid or protection, the GC wrote, and that is precisely what the employee’s Facebook posts were. “[T]he Charging Party’s Facebook comments were concerted activity because they sought to bring employee complaints to management’s attention and to initiate or induce group action,” according to the advice memo.

“It is important to recognize that the Charging Party is not a veteran, and therefore his posts’ primary message advocated not on his own behalf, but on behalf of veterans working for GP’s contractors,” the GC added. “This negates any inference that the Charging Party was expressing a purely personal gripe. Moreover, the Charging Party’s Facebook posts should be read to advocate for better treatment and working conditions on behalf of contractor employees generally.”

Expressions of support for immediate co-workers and other contractors’ employees by advocating for a positive change to their lot as employees “constituted a basic form of concerted activity covered by Section 7,” the GC explained, and therefore the employee’s termination was a violation of Section 8(a)(1).

To read the advice memo, click here.