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Case 22.1
HISPANICS UNITED OF BUFFALO, INC. AND CARLOS ORTIZ
United States of America
Before the National Labor Relations Board Division of Judges
Case 03-CA-027872 [July 13-15, 2011]
FACTS:
Marianna Cole-Rivera and Lydia Cruz-Moore were coworkers employed by the Respondent,
Hispanics United of Buffalo, Inc. (HUB), to assist victims of domestic violence.
The two employees frequently communicated with each other by phone and text message during
the workday and after hours.
According to Cole-Rivera’s credited testimony, Cruz-Moore often criticized other employees during
these communications, particularly housing department employees who, Cruz-Moore asserted, did
not provide timely and adequate assistance to clients.
Other employees similarly testified that Cruz-Moore spoke critically to them about their work
habits and those of other employees.
This “criticism” issue escalated on Saturday, October 9, 2010, a non-workday, when Cole-Rivera
received a text message from Cruz-Moore stating that the later intended to discuss her concerns
regarding employee performance with Executive Director Lourdes Iglesias.
Cole-Rivera sent Cruz-Moore a responsive text questioning whether she really “wanted Lourdes to
know…how u feel we don’t do our job…. .” From her home, and using her own personal computer,
Cole-Rivera then posted the following message on her Facebook page: “Lydia Cruz, a coworker
feels that we don’t help our clients enough at HUB. I about had it! My fellow coworkers how do u
feel?”
Four off-duty employees-Damicela Rodriguez, Ludimar Rodriguez, Yaritza Campos, and Carlos
Ortiz—responded by posting messages, via their personal computers, on Cole-Rivera’s Facebook
page; the employees’ responses generally objected to the assertion that their work performance
was substandard.
Cruz-Moore also responded, demanding that Cole-Rivera “stop with ur lies about me.” She then
complained to Iglesias about the Facebook comments, stating that she had been slandered and
defamed.
At Iglesias’ request, Cruz-Moore printed all the Facebook comments and had the printout delivered
to Iglesias.
On October 12, the first workday after the Facebook postings, Iglesias discharged Cole-Rivera and
her four co-workers, stating that their remarks constituted “bullying and harassment” of a
coworker and violated the Respondent’s “zero tolerance” policy prohibiting such conduct.
The Petitioners argued that the Facebook conversation was concerted activity and was protected
by the National Labor Relations Act (NLRA).
PROCEDURE: This is the first hearing on this matter.
ISSUE: Whether HUB violated Section 8(a)(1) of the NLRA by discharging five employees for Facebook
comments they wrote in response to a coworker’s criticisms of their job performance?
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the prior written consent of McGraw-Hill Education.
DECISION: Yes. The Facebook postings were found to be concerted and protected. The Division of
Judges determined that the employment discharges violated Section 8(a)(1).
RULE: “In Meyers I, the Board held that the discipline or discharge of an employee violates Section
8(a)(1) if the following four elements are established: (1) the activity engaged in by the employee was
“concerted” within the meaning of Section 7 of the Act; (2) the employer knew of the concerted nature
of the employee’s activity; (3) the concerted activity was protected by the Act; and (4) the discipline or
discharge was motivated by the employee’s protected, concerted activity.”
REASONING:
1. There should be no question that the activity engaged in by the five employees was concerted for
the “purpose of mutual aid or protection” as required by Section 7. As set forth in her initial
Facebook post, Cole-Rivera alerted fellow employees of another employee’s complaint that they
5. Because the Judges found that the Facebook postings were concerted and protected, and because
it is undisputed that the Respondents discharged the five employees based solely on their postings,
the discharges violated Section 8(a)(1).
ADDITIONAL INFORMATION:
In Myers Industries (Myers I), 268 NLRB 493 (1984), and in Myers Industries (Myers II) 281 NLRB 882
(1986), the Board held that “concerted activities” protected by Section 7 are those “engaged in
with or on the authority of other employees, and not solely by and on behalf of the employee
himself.”
Individual action is concerted so long as it is engaged in with the object of initiating or inducing
group action.
(1979), to aid in determining whether the employee’s conduct became so opprobrious as to lose
protection under the Act. The Atlantic Steel factors are: (1) the place of the discussion; (2) the
subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the
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the prior written consent of McGraw-Hill Education.
outburst was, in any way, provoked by an employer’s unfair labor practice. Applying these factors,
there is no basis for denying any of the five discriminatees the protection of the Act.