Law School Case Brief
Three D, LLC v. NLRB - 629 F. App'x 33 (2d Cir. 2015)
An employee's § 7 (29 U.S.C.S. § 157) of the National Labor Relations Act (NLRA) rights must be balanced against an employer's interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business. Accordingly, an employee's communications with the public may lose the protection of the NLRA if they are sufficiently disloyal or defamatory. These communications may be sufficiently disloyal to lose the protection of the NLRA if they amount to criticisms disconnected from any ongoing labor dispute.
Spinella and Sanzone, petitioner Triple Play Sports Bar and Grille’s employees, participated in an ongoing Facebook discussion about Triple Play’s calculation of employees’ tax withholding. Viewing the respective Facebook activity as one which disparaged its reputation, Triple Play discharged both Spinella and Sanzone. The National Labor Relations Board (“NLRB”) found that Triple Play violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) by dismissing its employees for their Facebook activity. According to the NLRB, the employees’ Facebook activity was a protected concerted activity because the discussion concerned workplace complaints about tax liabilities, and tax withholding calculations. The NLRB further held that the activity in question was not so disloyal as to lose protection under § 7 (29 U.S.C.S. § 157) of the NLRA. In its current petition, Triple Play argued that because Sanzone's and Spinella's Facebook activity contained obscenities that were viewed by customers, the NLRB should have found that this activity lost the protection of the Act under Starbucks, 679 F.3d at 79.
Under the circumstances, did the employees’ Facebook activity concerning their employer's income tax calculations lose protection under § 7 (29 U.S.C.S. § 157) of the NLRA?
Affirming, the Circuit Court of Appeals held that the employees’ Facebook activity did not lose protection under § 7 (29 U.S.C.S. § 157) of the NLRA. An employee's communications with the public may lose the protection of the Act if they were sufficiently disloyal or defamatory. According to the Court, the communications may be sufficiently disloyal to lose the protection of the Act if they amount to criticisms disconnected from any ongoing labor dispute. In the case at bar, the Court found that there was no basis for finding that the employees’ claims were maliciously untrue. The employees' posts were made to seek and provide mutual support looking toward group action, and were not made to disparage Triple Play or to undermine its reputation. The Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw it could evaluate the message critically in light of that dispute. The Court further held that Triple Play’s reliance on Starbucks was misplaced, as the present case was not on all fours with the former. Moreover, the Court averred that Triple Play’s argument that Starbucks should apply because the Facebook discussion took place "in the presence of customers" could lead to the undesirable result of chilling virtually all employee speech online.
As for the applicable standard of review, the Circuit Court of Appeals will uphold the NLRB's findings of fact if supported by substantial evidence and the NLRB's legal determinations if not arbitrary and capricious. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
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