United States Government

National Labor Relations BoardOFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE: July 7, 2011

TO: Gail R. Moran, Acting Regional DirectorRegion 13

FROM: Barry J. Kearney, Associate General CounselDivision of Advice

SUBJECT: JT’s Porch Saloon & Eatery, Ltd. 506-0170Case 13-CA-46689 506-2001-5000

The Region submitted this Section 8(a)(1) case for advice as to whether the Employer unlawfully discharged the Charging Party for posting a message on his Facebook pagethat referenced the Employer’s tipping policy, in response to a question from a nonemployee. We conclude that the Employer did not unlawfully discharge the Charging Party because he was not engaged in concerted activity.

FACTS

The Charging Party was employed as a bartender at JT’s Porch Saloon & Eatery, Ltd (the Employer), a restaurant and bar in Lombard, Illinois. The Employer maintains an unwritten policy, communicated to bartenders when they are hired, that waitresses do not share their tips with the bartenders even though the bartenders help the waitresses serve food.

Sometime in the fall of 2010, the Charging Party had a conversation with a fellow bartender about this tipping policy. He complained about the policy, and she agreed that it “sucked.” However, neither of them, or any other bartender, ever raised the issue with management.

On February 27, 2011,1 the Charging Party had a conversation on Facebook with his step-sister. She sent him a message asking how his night at work went. He responded with complaints that he hadn’t had a raise in five years and that he was doing the waitresses’ work without tips. He also called the Employer’s customers “rednecks” and stated that he hoped they choked on glass as

1 All dates are in 2011 unless otherwise noted.

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they drove home drunk. The Charging Party did not discuss his Facebook posting with any employees either before or after he wrote it. In addition, none of his fellow employees responded to it.

About a week after this Facebook posting appeared, the Employer’s night manager advised the Charging Party that he was probably going to be fired over it. On May 7, the Charging Party received a Facebook message from the Employer’s owner informing him that his services were no longer required. The next day, the Employer’s day manager left him a voice message stating that he was fired for his Facebook posting about the Employer’s customers.2

ACTION

We conclude that the Employer did not violate Section 8(a)(1) because the Charging Party did not engage in any concerted activity.

The Board’s test for concerted activity is whether activity is “‘engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.’”3 The question is a factual one and the Board will find concert “[w]hen the record evidence demonstratesgroup activities, whether ‘specifically authorized’ in a formal agency sense, or otherwise[.]”4 Thus, individual activities that are the “logical outgrowth of concerns expressed by the employees collectively” are considered

2 Although the Employer now claims that the Charging Party was fired [FOIA Exemptions 6 and 7(C)], in contesting his unemployment insurance claim the Employer cited the Facebook posting. We assume for purposes of this Memorandum that the evidence will demonstrate that the Charging Party was discharged because of his Facebook posting.

3 Meyers Industries, 281 NLRB 882, 885 (1986) (Meyers II), aff’d sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988).

4 Id. at 886.

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concerted.5 Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention.6

Here, there is no evidence of concerted activity. Although the Charging Party’s posting addressed his terms and conditions of employment, he did not discuss his Facebook posting with any of his fellow employees either before or after he wrote it, and none of his coworkers responded to the posting. There had been no employee meetings or any attempt to initiate group action with regard to the tipping policy or the awarding of raises. There also was no effort to take the bartenders’ complaints about these matters to management. In this instance, the Charging Party was merely responding to a question from his step-sister about how his evening at work went. And this internet “conversation” did not grow out his prior conversation with a fellow bartender months earlier about the tipping policy.

We conclude that because the Charging Party’s Facebook posting did not involve any concerted activity, he was notdischarged in violation of Section 8(a)(1).7 Accordingly, the Region should dismiss the instant charge, absent withdrawal.

B.J.K.

5 See, e.g., Five Star Transportation, Inc., 349 NLRB 42, 43-44, 59 (2007), enforced, 522 F.3d 46 (1st Cir. 2008) (drivers’ letters to school committee raising individual concerns over a change in bus contractors were logical outgrowth of concerns expressed at a group meeting).

6 Meyers II, 281 NLRB at 887.

7 In the absence of any evidence of concerted activity, it is unnecessary to reach the question of whether the Charging Party’s comments about the Employer’s customers rendered his posting unprotected.

United States Government

National Labor Relations BoardOFFICE OF THE GENERAL COUNSEL

Advice Memorandum

DATE: July 19, 2011

TO: Jonathan B. Kresiberg, Regional DirectorRegion 34

FROM: Barry J. Kearney, Associate General CounselDivision of Advice

SUBJECT: Martin House 506-0170Case 34-CA-12950 506-2001-5000

The Region submitted this Section 8(a)(1) case for advice as to whether the Employer unlawfully discharged the Charging Party for inappropriate Facebook posts that referenced to the Employer’s mentally disabled clients. We conclude that the Employer did not unlawfully discharge the Charging Party because she was not engaged in protected concerted activity.

FACTS

Martin House (the Employer) is a non-profit residential facility for homeless people. Many of the Employer’s clients suffer from mental illness and substance abuse. In May 2010, the Employer received a grant to develop a new residential program, designed for residents who have more significant mental health issues. The Charging Party was employed initially in April 2007 as a part-time residential assistant and in May 2010 became a full-time recovery specialist in the new program.

On January 27, 2011,1 the Charging Party engaged in the following “conversation” on her Facebook wall, while working on the overnight shift.

Charging Party: Spooky is overnight, third floor, alone in a mental institution, btw Im not a client, not yet anyway.

Friend 1: Then who will you tell when you hear the voices?

1 All dates are in 2011 unless otherwise noted.

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Charging Party: me, myself and I, one of us had to be right, either way we’ll just pop meds until they go away! Ya baby!

Charging Party: My dear client ms 1 is cracking up at my post, I don’t know if shes laughing at me, with me or at her voices, not that it matters, good to laugh

Friend 1: That’s right but, if she gets out of hand, restrain her.

Charging Party: I don’t need to restrain anyone, we have a great rapport, im beginning to detect when people start to decompensate and she is the sweetest, most of our peeps are angels, just a couple got some issues, Im on guard don’t worry bout a thing!

Friend 2: I think you’d look cute in a straitjacket, heh heh heh ...

Neither of the commenting “friends” were coworkers; in fact, the Charging Party admitted that she is not “Facebook friends” with any of her coworkers.

The Charging Party is “Facebook friends,” however,with one of the Employer’s former clients, who saw the postings and called the Employer to report her concern. As a result, when the Charging Party reported for work on January 31, she was handed a termination letter. That letter referenced the phone call that the Employer had received from its former client and quoted the Charging Party’s January 27 Facebook posts. The letter went on to state, in relevant part, that “[w]e are invested in protecting people we serve from stigma” and it was not “recovery oriented” to use the clients’ illnesses for her personal amusement. The letter also cited confidentiality concerns raised by her disclosing information about clients to others. Moreover, the Employer noted that her postswere entered on work time when she should have been performing work-related duties.

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ACTION

We conclude that the Employer did not violate Section 8(a)(1) because the Charging Party did not engage in any protected concerted activity.

The Board’s test for concerted activity is whether activity is “‘engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.’”2 The question is a factual one and the Board will find concert “[w]hen the record evidence demonstratesgroup activities, whether ‘specifically authorized’ in a formal agency sense, or otherwise[.]”3 Thus, individual activities that are the “logical outgrowth of concerns expressed by the employees collectively” are considered concerted.4 Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention.5

Here, there is no evidence of protected concerted activity. The Charging Party did not discuss her Facebook posts with any of her fellow employees, and none of hercoworkers responded to the posts. Moreover, the Charging Party was not seeking to induce or prepare for group action, and her activity was not an outgrowth of the employees’ collective concerns. In fact, her Facebookposts did not even mention any terms or conditions of employment. The Charging Party was merely communicating with her personal friends about what was happening on her

2 Meyers Industries, 281 NLRB 882, 885 (1986) (Meyers II), aff’d sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988).

3 Id. at 886.

4 See, e.g., Five Star Transportation, Inc., 349 NLRB 42, 43-44, 59 (2007), enforced, 522 F.3d 46 (1st Cir. 2008) (drivers’ letters to school committee raising individual concerns over a change in bus contractors were logical outgrowth of concerns expressed at a group meeting).

5 Meyers II, 281 NLRB at 887.

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shift. Accordingly, she was not discharged in violation ofSection 8(a)(1), and the Region should dismiss the charge, absent withdrawal.6

B.J.K.

6 In the absence of any evidence of protected concerted activity, it is unnecessary to reach the issue of whether the Charging Party’s comments about the Employer’s clients rendered otherwise protected activity unprotected.

United States Government

National Labor Relations BoardOFFICE OF THE GENERAL COUNSEL

Advice MemorandumDATE: July 19, 2011

TO : Daniel L. Hubbel, Regional DirectorRegion 17

FROM : Barry J. Kearney, Associate General CounselDivision of Advice

SUBJECT: Wal-MartCase 17-CA-25030 506-2017-0800

506-4033-1200506-4067-1000506-6090-4200512-7550-7000

This case was submitted for advice as to whether the Employer violated Section 8(a)(1) by disciplining an employee for posting profane comments on Facebook that were critical of local store management. We conclude that the charge should be dismissed because there is insufficient evidence that the employee engaged in concerted activity.

FACTS

Wal-Mart (the “Employer”) operates retail stores throughout the country. The Charging Party is a customer service employee in an Oklahoma store.1 In October 2010,2the Employer appointed a new Assistant Manager to the store.

On October 28, after an interaction with the Assistant Manager, the Charging Party posted the following comment into his Facebook page: “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!” The Charging Party limited his observations to his Facebook friends, which were largely composed of coworkers rather than third parties. Two coworkers responded to the Facebook post as follows:

[Employee 1]: bahaha like! :)

1 The Charging Party’s job title is Customer Service Manager. The Region has concluded that the Charging Party is not a Section 2(11) supervisor.

2 All dates are in 2010 unless otherwise indicated.

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[Employee 2]: What the hell happens after four that gets u so wound up??? Lol

The Charging Party responded to his coworkers’ postings with the following entry:

You have no clue [Employee 1]...[Assistant Manager] is being a super mega puta! Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price...that’s false advertisement if you don’t sell it for that price...I’m talking to [Store Manager] about this shit cuz if it don’t change walmart can kiss my royal white ass!

The Charging Party asserts that two other coworkers also made supportive comments. One of those coworkers has confirmed that she made a “hang in there” type of remark.

At least one coworker who viewed the Charging Party’s Facebook postings provided a printout to the Employer Store Manager. On about November 4, the Store Manager called the Charging Party into her office to discuss the Facebook postings. The Store Manager told the Charging Party that his Facebook comments were slander, that he could be fired, and that he would be required to take a “decision day.”3 She also prepared a discipline report in which she stated that the Charging Party had “put some real bad things on Facebook about Wal-Mart and [Assistant Manager],” and that the Charging Party’s behavior “look[s] bad on the company and i[s] not with in [sic] company g[u]ide lines”; that the Charging Party was expected to “have respect of the Individual”; and that the Charging Party would be terminated if such behavior continued.

The Charging Party subsequently deleted the Facebook postings.

The Employer contends that the charge should be dismissed because the Facebook postings were not concerted activity for mutual aid or protection and, even assuming otherwise, the Charging Party’s use of profanity was so opprobrious as to deprive him of the Act’s protection.4

3 A decision day is a one-day paid suspension that precludes opportunities for promotion for 12 months.

4 The Employer also alleges that the Charging Party is a statutory supervisor, a contention the Region has rejected and which it did not submit for Advice.

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ACTION

We conclude that the charge should be dismissed, absent withdrawal because there is insufficient evidence that the Charging Party engaged in concerted activity. Accordingly, we need not address whether his comments were so opprobrious that they lost the Act’s protection.

An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,”5 when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings“truly group complaints to the attention of management.”6 Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’”7 On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted.8 Comments must look toward group action; “mere griping” is not protected.9

Here, we conclude that the Charging Party’s Facebook postings were an expression of an individual gripe. Theycontain no language suggesting the Charging Party sought to initiate or induce coworkers to engage in group action;rather they express only his frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items. Moreover, none of the coworkers’ Facebook responses indicate that they otherwise interpreted the Charging Party’s postings. Employee 1 merely indicated that he found Charging Party’s first Facebook posting humorous, while Employee 2 asked why the Charging Party was so “wound up.” Another coworker’s “hang

5 Meyers Industries (Meyers I), 268 NLRB 493, 497 (1984), revd. 755 F.2d 941 (D.C. Cir. 1985), on remand Meyers Industries (Meyers II), 281 NLRB 882 (1986), affd. 835 F.2d 1481 (D.C. Cir. 1987).

6 Meyers II, 281 NLRB at 887.

7 Holling Press, Inc., 343 NLRB 301, 302 (2004), citing Meyers II, 281 NLRB at 887. See also Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964) (“Activity which consists of mere talk must, in order to be protected, be talk looking toward group action”).

8 Meyers I, 268 NLRB at 497.

9 See Mushroom Transportation Co. v. NLRB, 330 F.2d at 685.

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in there”-type comment suggests that she only viewed his postings to be a plea for emotional support. Nor is there evidence that establishes that the Charging Party’s postings were the logical outgrowth of prior groupactivity.

Accordingly, the Employer did not violate Section 8(a)(1) by disciplining the Charging Party. The charge should be dismissed, absent withdrawal.

B.J.K.