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The NLRB Finds Another Facebook-Related Violation: The Bettie Page Decision

The NLRB once again considered the application of section 7 of the National Labor Relations Act in the non-union context when it decided Design Technology Group, LLC d/b/a Bettie Page Clothing on April 19, 2012.  This case follows the Board's prior decision in Hispanics United, which applied section 7 to employee comments on Facebook.

The threshold issue in the case related to Bettie Page's employee handbook.  Betti Page had a handbook that contained the following provision:

Wage and Salary Disclosure

Compensation programs are confidential between the employee and [Bettie Page.] Disclosure of wages or compensation to any third party or other employee is prohibited and could be grounds for termination.

Over the years, the Board has frequently held that section 7 protects the right of employees to discuss wages and work conditions.  In fact, the Board has made large back pay awards against employers who fire employees for discussing wages.  An example of this is the recent decision in Jones & Carter.  Prior to the events at issue, Bettie Page had modified the handbook (without notifying its employees) to substitute alternative language:

Confidencial [sic] Information Security

As a matter of course employees of [Bettie Page] will have access to confidential and proprietary information. This information includes, but is not limited to, personnel information, pricing client lists, contractual agreement, intellectual property and marketing/sales strategies.  It is a condition of employment that you not disclose this information to third parties during or after employment. Disclosure of [BettiePage] confidential information without express written approval is prohibited.

 Because this provision continued to refer to "personnel information" (which includes wages), the ALJ found that the revised provision violated section 7, and the Board affirmed that finding.

The main issue involved three employees (Thomas, Morris, and Johnson) had work-related issues with the store manager (Griffin).  The employees had raised these issues with another manager (Avila), a company consultant (Hutto), and the owner of the company (Glaser).  In the midst of the dispute, the employees discussed the matter on Facebook:

Holli Thomas needs a new job. I’m physically and mentally sickened.

Vanessa Morris It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!!

Holli Thomas bettie page would roll over in her grave.

Vanessa Morris She already is girl!

Holli Thomas 800 miles away yet she’s still continues our lives miserable. Phenomenal!

Vanessa Morris And no one’s doing anything about it! Big surprise!

Brittany [Johnson] “bettie page would roll over in her grave.”  I’ve been thinking the same thing for quite some time.

Vanessa Morris hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) see you tomorrow!

Morris did indeed bring the legal book to work.

Griffin found out about the Facebook postings from another employee and informed Avila, who informed Hutto. who in turn informed Glaser.  Hutto sent an e-mail to Glaser stating:

I screen printed these so you could see them. Carla (Avila) gave me the heads up. I guess she also stated that her mom picked up a California employment book and that we are doing all kind of things wrong. I didn’t see that post. Maybe ask Carla about it. I think we need to take action right away. Also I don’t k now [sic] if Hayley (Griffin) is the right person to do it.

 Four days later, Bettie Page fired Thomas and Morris.  A month later, Bettie Page fired Johnson.  While Bettie Page claimed that it fired the three employees for unrelated reasons, the ALJ did not find those reasons to be credible.  The ALJ ordered reinstatement and back pay with respect to all three employees.

The Board affirmed.  The Board found that the employees had engaged in protected conduct prior to the Facebook postings and in the Facebook postings themselves:

We agree with the judge’s finding that Thomas and Morris were engaged in protected concerted activity when they presented the concerns of the employees about working late in an unsafe neighborhood to their supervisor and to the Respondent’s owner, and that their Facebook postings were a continuation of that effort. But we also find that the Facebook postings would have constituted protected concerted activity in and of themselves. The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether the Respondent was violating labor laws. Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action.

 The Board also addressed the employer's "discharge conspiracy" argument.  The employer argued that the employers wanted to be fired and had entrapped the employer into firing them.  The Board upheld the ALJ's findings to the contrary:

The judge correctly rejected the Respondent’s “discharge conspiracy” theory. The Respondent contends that the Facebook postings were not protected because the employees had “no ‘honest and reasonable belief’ that the purpose of their conduct was for the mutual aid and protection of employees,” and that instead, the employees “schemed to entrap their employer into firing them.”  The judge found the conspiracy theory to be “nonsensical,” and we agree. There is no credited evidence that the employees’ actions were undertaken to entrap the Respondent into committing an unfair labor practice. But even if the employees were acting in the hope that they would be discharged for their Facebook postings, the Respondent failed to establish that the employees’ actions were not protected by the Act.  Accordingly, we agree with the judge that the Respondent violated Section 8(a)(1) by discharging employees for engaging in that activity.

The Board cited prior cases -- including decisions from two circuits -- that cast doubt on whether the employees' subjective motives are relevant in a section 7 case.

For employers, this case is yet another reminder that attempts to regulate work-related speech among employees can subject an employer to significant liability.  In other recent cases, the Board has found that particular obnoxious comments by employees lose their protected status, but the comments in this case did not come close to meeting that standard.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes