The Virtual Water Cooler and the NLRB: Concerted Activity in theAge of Facebook

Table of ContentsI. Introduction 1716II. The Development of the Present Concerted Activity Standard 1717A. The Statutory Language 1717B. The Board's Interpretation of the Statutory Language 1719III. The Application of the Meyers I Standard in the Social Media Context 1721A. The First NLRB Report 17251 . When Concerted Activity Was Present 1 7262. When Concerted Activity Was Not Present 17273. What the Cases in the First Report Tell Us 1729B. The Second NLRB Report 17321 . When Concerted Activity Was Present 17322. When Concerted Activity Was Not Present 17353. What the Cases in the Second Report Tell Us 1738C. The ALJ Cases 17401. Hispanics United of Buffalo, Ine 17402. Karl Knauz Motors, Ine 17433. Triple Play Sports Bar & Grille 17454. What the ALJ Cases Tell Us 1747IV. Why the Concerted Activity Standard Is Problematic in the Social Media Context 1749A. Where the Board Draws the Line 1749B. Why the Board's Line Drawing Is Problematic 1751V. Possible Approaches 1752A. Addressing the Problem at the Front- End 1753B. Addressing the Problem Head-On 1755C. Addressing the Problem at the Back-End 1756VI. Conclusion 1758I. IntroductionThe National Labor Relations Act (NLRA or Act)1 gives employees the right "to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection."2 When President Roosevelt signed the Act into law in 1935, few could have imagined the new contexts in which "concerted activities" would arise. The Act's drafters envisioned a workplace in which employees communicated with each other in person. Employee communication is no longer so limited, however. Facebook and other social networking websites have altered this traditional water cooler model, creating new spaces in which employees interact.With these new spaces come new questions. Chief among them is how the National Labor Relations Board (NLRB or Board)3 should apply the Act's concerted activity provision in cases involving a virtual water cooler. Do existing standards for defining concerted activity make sense when applied in the social media context, or should the NLRB alter them to better comport with the realities of contemporary interaction? Facebook firing cases - cases in which an employer fires an employee because of a Facebook posting - provide insight.Adapting the present concerted activity standard for application in Facebook firing cases has presented the Board with numerous challenges. The source of these challenges is the very nature of social media; the forum itself makes it more difficult to distinguish reasonably between activity that is concerted and activity that is not. Furthermore, the forum alters the calculus of interest balancing in which the Board must engage to effectuate the Act's purposes. While the Board has attempted to clarify how social media will fit into existing doctrine, uncertainty remains.This Note examines why uncertainty remains and offers three temporally based approaches to remedy the uncertainty. Part II of this Note explores the Board's present interpretation of concerted activity. Part III details how entities within the Board have applied the standard in Facebook firing cases. Part TV examines why the application of the standard in Facebook firing cases is problematic. Part V suggests three approaches that the Board should consider: promulgating a model social media policy; identifying factors that tend to indicate concertedness in the social media context; and applying a more stringent loss-ofprotection standard to cases involving social media. These approaches are not mutually exclusive and recognize both the unique attributes of the social media context and the interests that the context implicates.II. The Development of the Present Concerted Activity StandardA. …