Group Email Exchange Deemed Protected Concerted Activity

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

With all of the publicity over the Republican assumption of control of the National Labor Relations Board, employers could be excused if they assumed that all of the prior board’s decisions were now open for review and reversal. These cases include an expansion of the NLRA’s concerted activity protections to cover electronic communications and social media behavior by employees. However, a new NLRB decision shows that the reasoning behind some of those cases appears to have carried over to the new board majority.
In Mexican Radio Corp., a departing employee sent a long email message to her employer on the way out the door, complaining about a number of work practices, including wages, schedules, and uncivil behavior by the general manager. Several co-workers copied on the email responded, supporting the departing employee and the sentiments expressed in her email. They filed unfair labor practice charges with the NLRB after they claimed that they were fired based on their support of the original email.
The NLRB sided with the employees, concluding that an email response supporting a co-worker’s complaints about terms and conditions of employment constitutes protected concerted activity. The responses were not particularly vulgar or personal in their criticisms and were made in a relatively private context. This opinion parallels similar NLRB decisions where the board characterized “liking” a comment on Facebook as protected concerted activity.
The NLRB’s decision in this case may have been influenced by what appeared to have been an overly aggressive response by the employer to employee dissatisfaction over working conditions. Regardless, even the newly constituted NLRB cannot be expected simply to take the opposite position with regard to prior board decisions.

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