Complaint over Working in Unsafe Neighborhood Protected, NLRB Finds, Rejects Entrapment Defense

“Protected concerted activity” under the National Labor Relations Act covers employee complaints over times and places of employment, as well as other terms and conditions, the National Labor Relations Board has shown, holding that an employer unlawfully terminated employees who complained to management about working late hours in an unsafe neighborhood and who later continued their protest on Facebook. Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (Apr. 19, 2013). In addition to finding the initial complaint protected, the Board found the workers’ Facebook postings also were protected because they “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 Board rejected the employer’s argument that:

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 Board found the argument “nonsensical,” noting that “even if the employees were acting in the hope that they would be discharged for their Facebook postings, the [employer] failed to establish that the employees’ actions were not protected by the Act.” Thus, the Board concluded the employer committed an unfair labor practice (under Section 8(a)(1) of the Act) by terminating the employees.

This case shows that the expression, “terms and conditions of employment,” has a broad reach. It encompasses wages, hours, and benefits, to be sure; but, as here, it can also include the workplace environment, even when the place of work is not an employer’s premises. This case also instructs that, to the Board, employees’ motives for engaging in protected concerted activity are not pertinent in determining whether the conduct is protected by the Act. Therefore, it now may be difficult to defend disciplinary decisions by asserting that employees engaged in conduct for suspect or sham purposes when the conduct is protected concerted activity.