Bielan: All A-"Twitter"

BIELAN - FINAL (DO NOT DELETE)
11/2/2011 4:20 PM
All A-Twitter: The Buzz Surrounding

Ranting on Social-Networking Sites and
Its Ramification on the Employment
Relationship
KIMBERLY BIELAN*
ABSTRACT
The effect of social networking on employment has taken center stage

in the media, showcasing the rights and duties of employers and
employees in the Internet era. This Note argues that when an employee
posts expletives about his employer on a social-networking website it is not
protected behavior under 7 of the NLRA. This argument takes into
account the unique public nature of social-networking sites and the quick
response that the forum requires from employers.
To be concerted activity under the Leslie Metal Arts Co. test, an
employee must make a work-related complaint, must contemplate and
promote a group interest, must seek a specific remedy, and the activity
cannot be illegal or otherwise improper. Applying a hypothetical scenario
to this test yields the conclusion that when an employee posts disparaging
comments on social-networking sites about his employer, he is not
protected under 7 of the NLRA.
This Note offers two solutions to the problems caused by the
interaction between social networking and the employment relationship:
the implementation of comprehensive social-networking policies by
employers and the potential for amendment of the NLRA to account for
technological advancements.
* Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Political Science,
Providence College (2009). I would like to thank the members of Volumes 45 and 46 of the
New England Law Review. Your suggestions, time, and effort have been indispensible
throughout the writing and editing process. I would also like to thank my family and friends
for their continued support.
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INTRODUCTION
ooks like Im getting some time off. Love how the company
allows a 17 to be a supervisor.1 This was the disgruntled
message posted by Dawnmarie Souza after her supervisor
asked her to investigate an incident in which a customer complained about
her work performance.2 She posted the message on her personal Facebook3
page while she was at home and off-duty.4 Her post incited a response
from her coworkers and Souza, in turn, posted even more negative
remarks about her supervisor, using expletives in the process. 5 Souza was
subsequently fired by her employer, American Medical Response of
Connecticut, Inc. (AMR).6 On October 27, 2010, the National Labor
Relations Board (NLRB) filed a complaint against AMR on grounds that
Souzas termination violated federal laws protecting employee speech
recognized to be concerted activity.7 The general counsel of the NLRB
compared Souzas Facebook postings to talking at the water cooler,
while Souzas employer contended that whether or not the remarks had
been made, Souza was let go for a legitimate business reasonmultiple
complaints concerning her rude and discourteous service. 8
1 17 is the employers code referring to a psychiatric patient. Sam Hananel, Woman

Fired Over Facebook Rant; Suit Follows, MSNBC.COM (Nov. 10, 2010, 9:43 AM),
http://www.msnbc.msn.com/id/40097443/ns/business-personal_finance/.
2 Id.
3 Facebook is a social-networking website that was founded in February 2004.
FACEBOOK, http://www.facebook.com/#!/facebook?sk=info (last visited Oct. 17, 2011). Every
day millions of individuals log on to Facebook to interact with their friends through the use of
posts and uploaded photographs, interact by sharing videos, and maintain correspondence
with others. Id.
4
Hananel, supra note 1.

News Release: Complaint Alleges Connecticut Company Illegally Fired Employee Over
Facebook Comments, NATL LAB. REL. BOARD (Nov. 2, 2010) [hereinafter News Release], available
at http://www.nlrb.gov/ news-media/news-releases/archive-news; Hananel, supra note 1.
6 Hananel, supra note 1.
7 Id.; see News Release, supra note 5. Concerted activity is activity engaged in for the
purpose of collective bargaining or other mutual aid or protection. National Labor Relations
Act 7, 29 U.S.C. 157 (2006).
5
8 Hananel, supra note 1. In early 2011, AMR settled with its former employee. Details
involving the allegations that led to Souzas firing were resolved but not publicized, and as
part of the settlement the employer agreed to amend its policies that cover discussion of the
company by employees outside of work. Julianne Pepitone, Facebook Firing Test Case Settled
Out of Court, CNNMONEY.COM (Feb. 8, 2011, 1:44 PM), http://money.cnn.com/
2011/02/08/technology/facebook_firing_settlement/index.htm; see Hananel, supra note 1.
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Social-Network Rants and the Employment Relationship
157
This first-of-its-kind legal case highlights the changing nature of

employee communication in the social-networking era.9 Over seventy
percent of individuals using the Internet in the United States are Facebook
members,10 and social networking has become a major player in commerce
with over 1.5 million businesses maintaining active pages on Facebook as
of 2010.11 These astounding statistics are not unique to FacebookTwitter12
has over 106 million user accounts and 180 million unique visitors each
day,13 and YouTube14 exceeds over two billion views a day and twenty-four
hours of video are uploaded every minute.15 Given the high number of
users, it is unsurprising that 66% of employers actively monitor their
employees activity on the web.16 Monitoring employee activity may have
serious consequences: An employer may find provocative or
inappropriate photographs, content about drinking and/or drug use, badmouthing of current or previous employers, discriminatory comments,
sharing of confidential employer information, and misrepresentation about
qualifications.17 It is no wonder that the practice raises more questions
than it resolves: What are the limits on an employers interest in the
activities of his or her employees? What privacy interests do employees
possess? Do employers also have a right to privacy?18
Hananel, supra note 1.

Facebook Statistics, Stats & Facts for 2011, DIGITAL BUZZ BLOG (Jan. 18, 2011),
http://www.digitalbuzzblog.com/facebook-statistics-stats-facts-2011/.
10
11
Facebook: Facts & Figures for 2010, DIGITAL BUZZ BLOG (Mar. 22, 2010),
http://www.digitalbuzzblog.com/facebook-statistics-facts-figures-for-2010/.
12 Twitter is a social-networking website on which users share Tweets, updates that
are 140 characters in length, to apprise other users of real-time information regarding a
particular person or public interest. See TWITTER, http://twitter.com/about (last visited Oct. 17,
2011).
13 Twitter Statistics, Facts & Figures, DIGITAL BUZZ BLOG (May 12, 2010),
http://www.digitalbuzzblog.com/infographic-twitter-statistics-facts-figures/.
14 YouTube was founded in 2005 and acts as a forum for billions of individuals to share
videos on the Internet. About Us, YOUTUBE, http://www.youtube.com/t/about_youtube (last
visited Oct. 17, 2011).
15 YouTube Statistics, Facts & Figures, DIGITAL BUZZ BLOG (May 19, 2010),
http://www.digitalbuzzblog.com/ infographic-youtube-statistics-facts-figures/.
16
TAMSIN R. KAPLAN ET AL., SEMINAR: TOP FIVE EMPLOYMENT LAW TRENDS IT PAYS TO
KNOW 232 (MCLE, Inc. 2010).
17 Katy Rand, Spyer Beware: The Pitfalls of Using Social Networking Sites to Reach
Employees, 25 ME. B.J. 204, 204 (2010).
18 WILLIAM S. HUBBARTT, THE NEW BATTLE OVER WORKPLACE PRIVACY 8 (1998). The
answers to these questions necessarily differ from the public to private sphere. Although
employers in the private sector have limits on their actions, the Constitution and federal laws
do not fundamentally guarantee an employees right to privacy in the private sector. Id. at 1.
This Note focuses on employer and employee rights in the private sector.
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The NLRB is pursuing cases against employers who discharge

employees for posting on social-networking websites with the aim to
clearly establish the rights of employers and employees in the Internet
era.19 As in the case brought on behalf of Dawnmarie Souza, in which the
NLRB contended that she participated in concerted activity, employers
will need to be aware of 7 of the National Labor Relations Act
(NLRA).20 Section 7 prevents employers from interfering with certain
employee rights, including their right to engage in . . . concerted activities
for the purpose of collective bargaining or other mutual aid or
protection.21 The employees action must satisfy certain criteria to be
protected under 7 of the Act: It must be work related, further a group
interest, seek a specific remedy, and be lawful and proper.22 Even then,
courts may review the concerted activity to see whether it amounts to
mere griping; if so, any protections that would otherwise have been
afforded to the activity are nullified.23
Indications are that the NLRB will contend that social-networking site
postings by employees, even if merely disparaging comments about ones
supervisor, do constitute concerted activity. 24 This Note takes the
opposite position and argues that when an employee posts expletives
about his employer on a social-networking website, it is not protected
behavior under 7 of the NLRA because it does not constitute concerted
activity; moreover, even if such activity could otherwise be categorized as
activity that is concerted in nature, it is mere griping and cannot be
afforded protection.25 The unique public nature of social-networking sites
and the required rapid response by employers necessitates this
conclusion.26 Part I of this Note reviews the historical balance of employer
and employee rights under the NLRA. This section also includes an
overview of social-networking sites and how this new media could
potentially upset the balance of rights in the employment relationship. Part
II analyzes the reasons why posting disparaging comments about ones
employer should not constitute concerted activity and thus should not
receive protection under 7 of the NLRA. Part III addresses the new nature
of social-networking sites and discusses the need for timely employer
19
See News Release, supra note 5; Hananel, supra note 1.

National Labor Relations Act 7, 29 U.S.C. 157 (2006). NLRA and Act will be
used interchangeably throughout the Note to refer to the National Labor Relations Act.
20
21
22
23
24
25
26
Id.; see Rand, supra note 17, at 205; Hananel, supra note 1; News Release, supra note 5.
See discussion infra Part I.B.1.
See, e.g., Hananel, supra note 1.
See discussion infra Part III.
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response in reaction to inappropriate uses of social-networking sites by

employees. Finally, Part IV proposes two solutions to the problems facing
employers due to employees use of social networkingcreation of
comprehensive Internet usage policies and amendment to the NLRA.
I.
Traditional Rights of Employers and Employees and the

Introduction of Social-Networking Sites into the Employment
Relationship
A. The National Labor Relations Board: Enforcing the Provisions of the
NLRA
One of the main purposes of the NLRA is to resolve labor disputes that
could have an adverse effect on interstate commerce.27 The NLRA
guarantees protection to both union and nonunion employees.28 A key
provision of the NLRA is the creation of the NLRB, codified at 29 U.S.C.
153.29 The NLRB is an independent federal government agency that
implements the national labor policy for private employers.30 One of the
primary tasks of the NLRB is to prevent and remedy unfair labor practices
committed by employers.31 Field offices conduct investigations into
whether unfair labor practices have occurred; if they have, a regional
director decides whether to take formal action against the company. 32 If a
settlement cannot be reached, the case is brought to a NLRB administrative
27 The NLRA states that the legislation seeks to protect the rights of employees and
employers, to encourage collective bargaining, and to curtail certain private sector labor and
management practices, which can harm the general welfare of workers, businesses and the
U.S. economy. See National Labor Relations Act, NATL LAB. REL. BOARD, http://www.nlrb.gov/
national-labor-relations-act (last visited Oct. 17, 2011).
28 Michael A. Curley & Debra Morway, Legal Issues Arising from the Use of Social Networks
at Work, in SOCIAL MEDIA 2011: ADDRESSING CORPORATE RISKS 95, 112 (2011). This Note will
analyze the activities and protections afforded to nonunion employees.
29
National Labor Relations Act 3, 29 U.S.C. 153(a) (2006).

The NLRB Process, NATL LAB. REL. BOARD, http://www.nlrb.gov/nlrb-process (last
visited Oct. 17, 2011). The NLRB has jurisdiction over all employers in interstate commerce
except for the government, railroads, airlines, and agriculture. See Frequently Asked Questions
NLRB, NATL LAB. REL. BOARD, http://www.nlrb.gov/faq/nlrb (last visited Oct. 17, 2011). The
NLRA covers most private-sector workplaces and employees, including manufacturing
plants, retail centers, private universities, and health care facilities. . . . [E]xempted are
supervisors and independent contractors. Id.
30
31 What We Do, NATL LAB. REL. BOARD, http://www.nlrb.gov/what-we-do (last visited

Oct. 17, 2011).
32
The NLRB Process, supra note 30. Orders must be based on evidence with a rational
probative force; in this manner, the power granted to the NLRB to effectuate policies under
the NLRA is restricted. NLRB v. Boss Mfg. Co., 107 F.2d 574, 579 (7th Cir. 1939).
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law judge (ALJ).33 When in front of the ALJ, the NLRB bears the burden
of proving that the employee was unlawfully discharged. 34 The ALJ files a
decision that automatically becomes the Boards order if no exceptions are
filed.35 This decision is then subject to review by any of the U.S. courts of
appeal.36
B. The Rights of Employees: 7 of the NLRA
The rights of employees in the private sector are delineated in 7 of the
NLRA, codified at 29 U.S.C. 157.37 The section states:
Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment . . . .38
Section 7 establishes the employee actions that are protected from

employer interference.39 It has been interpreted to permit employees to
discuss working conditions with their coworkers and to allow employees
to bargain collectively for contracts that set wages, benefits, and other
working conditions. Section 7 prevents employers from taking adverse
action against an employee who acts with his coworker for mutual aid or
protection and from prohibiting coworker conversation about working
conditions.40 An employee must engage in concerted activity in order to
33
The NLRB Process, supra note 30. An administrative law judge is *a+n official who
presides at an administrative hearing and who has the power to administer oaths, take
testimony, rule on questions of evidence, and make factual and legal determinations.
BLACKS LAW DICTIONARY 51 (9th ed. 2009).
34 NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972).
35 The NLRB Process, supra note 30.
36 Id. Pursuant to 29 U.S.C. 160(e), appeals courts are required to uphold the Boards
findings of fact when there is substantial evidence in the record that supports the finding.
See, e.g., Jolliff v. NLRB, 513 F.3d 600, 607-08 (6th Cir. 2008). When evidence consists of witness
testimony, the ALJs assessment of the demeanor and credibility of the witnesses is given
significant deference by the reviewing court. Id. (citing Litton Microwave Cooking Prods. v.
NLRB, 868 F.2d 854, 857 (6th Cir. 1989)).
37
National Labor Relations Act 7, 29 U.S.C. 157 (2006).

Id. (emphasis added). An employee includes any individual whose work has ceased
as a consequence of, or in connection with, any current labor dispute or because of any unfair
labor practice. Id. 2.
38
39
40
Id. 7.
See generally Rights We Protect, NATL LAB. REL. BOARD, http://www.nlrb.gov/rights-
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be granted such protections.41

1.
Concerted Activity: Employee Conduct that Is

Protected by the NLRA
The phrase concerted activities is an integral part of the protections

granted to employees by the NLRA, but the Act does not provide a
definition.42 Interpretation of the phrase has indicated that it includes
situations in which employees act together, with or without a union, to
improve working terms and conditions, including wages and benefits. 43
An individual employee may act in a manner that is concerted if the
employee is speaking on behalf of himself and at least one coworker.44 In
Mushroom Transportation Co. v. NLRB,45 the court noted that a conversation
with only one speaker and one listener could qualify as concerted
activity if, at the very least, the employees conversed to prepare for
group action or to contemplate a group interest.46
In NLRB v. Leslie Metal Arts Co.,47 the court identified four elements
necessary in order to find protected, concerted activity under 7 of the
NLRA: (1) there must be a work-related complaint or grievance; (2) the
concerted activity must further some group interest; (3) a specific remedy
must be sought through such activity; and (4) the activity should not be
unlawful or otherwise improper.48 First, an employees activity must be
directed at conditions of employment, 49 eliminating from protection the
we-protect (last visited Oct. 17, 2011).

41
National Labor Relations Act 7.

See id. 2. The words concerted activities in section 7 constitute a term of art rather
than a factual description. Anchortank, Inc. v. NLRB, 618 F.2d 1153, 1160 (5th Cir. 1980);
Comment, Constructive Concerted Activity and Individual Rights: The Northern Metal-Interboro
Split, 121 U. PA. L. REV. 152, 153-54 (1972).
42
43 Employee Rights, NATL LAB. REL. BOARD, http://www.nlrb.gov/rights-we-protect/

employee-rights (last visited Oct. 17, 2011).
44 Id. The mere fact that an employee has acted alone does not preclude treatment of his
action as concerted activity for mutual aid or protection under Section 7. Anchortank, 618 F.2d
at 1160.
45
330 F.2d 683 (3d Cir. 1964).

Id. at 685; accord Pioneer Natural Gas Co. v. NLRB, 662 F.2d 408, 418 (5th Cir. 1981). If
upon a factual inquiry it becomes apparent that no group action is intended, contemplated,
or even referred to, then the activity cannot be concerted activity. Mushroom Transp. Co.,
330 F.2d at 685.
46
47
509 F.2d 811 (6th Cir. 1975).

Id. at 813 (citing Shelley & Anderson Furniture Mfg. Co. v. NLRB, 497 F.2d 1200, 120203 (9th Cir. 1974)).
49 Id.; see Hagopian & Sons, Inc. v. NLRB, 395 F.2d 947, 951 (6th Cir. 1968) (*T+o be
protected by the Act, the concerted activity . . . must have been directed toward a dispute
48
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mutual interests of employees that do not bear a reasonably significant

impact upon working conditions.50 The complaint must center on
employees interests as employees, and failure to satisfy this connection
makes the activity so attenuated as to not be granted protection. 51
Activity that is motivated by personal grievances does not fall within the
scope of a work-related complaint.52 On the other hand, complaints
regarding the quality of supervision and conditions generally have been
considered protected activity.53 Second, there must be a group interest
promoted by the employees activity.54 The employee must make more
than a passing remark for his statement to be considered concerted
activity.55 Preliminary conversations may constitute consideration of a
future action,56 but this is not true when it appears from the conversations
themselves that no group action of any kind is intended, contemplated, or
even referred to.57 There are instances when employees expressly form a
group in order to promote their mutual concerns and to achieve common
goalssuch activity is protected under 7.58 This formation may not be
restricted by an employer59 and has been recognized as one of the primary
purposes behind the passage of the NLRA. 60 In these circumstances, an
concerning conditions of employment . . . .).

50
Leslie Metal Arts Co., 509 F.2d at 813 (quoting G & W Electric Specialty Co. v. NLRB,
360 F.2d 873, 877 (7th Cir. 1966)).
51 Eastex, Inc. v. NLRB, 437 U.S. 556, 567-68 (1978).
52 See Leslie Metal Arts Co., 509 F.2d at 813; accord NLRB v. Red Top, Inc., 455 F.2d 721,
726 (8th Cir. 1972) (It is difficult to even imagine that Congress intended the National Labor
Relations Act to protect employee conspiracies against an unpopular manager.).
53
See Leslie Metal Arts Co., 509 F.2d at 813.

Id.
55 See Pioneer Natural Gas Co. v. NLRB, 662 F.2d 408, 418 (5th Cir. 1981) (In order for
conversations between two employees to constitute concerted activity, there must be some
element of collective activity or contemplation thereof. (quoting NLRB v. Buddies
Supermarkets, Inc., 481 F.2d 714, 717 (5th Cir. 1973))).
54
56 NLRB v. Datapoint Corp., 642 F.2d 123, 128 (5th Cir. 1981) (In order to be protected,
group talk or activity must look toward some kind of group action.).
57 Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964).
58 See, e.g., Am. Smelting & Ref. Co. v. NLRB, 126 F.2d 680, 685 (8th Cir. 1942) (So far as
labor problems and relations are concerned, the employees must be left free and untrammeled
in forming, maintaining or joining such labor organizations as they choose.); Mobil
Exploration & Producing U.S., Inc. v. NLRB, 200 F.3d 230, 238 (5th Cir. 1999).
59 NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956) (No restriction may be
placed on the employees right to discuss self-organization among themselves . . . .).
60 See Signal Oil & Gas Co. v. NLRB, 390 F.2d 338, 343 (9th Cir. 1968) (The Act was
designed primarily to guarantee employees the right to organize and to engage in joint action
calculated to further their mutual interests, and it would be inconsistent . . . to exclude from its
protection speech supporting such joint action.).
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individual employee may act on behalf of authority granted by

coworkers.61
Third, it is fundamental that employees act purposefully in their
actions.62 Preliminary discussions may constitute concerted activity, even
if they have not yet resulted in organized action.63 An initial off-handed
comment made by an employee in the presence of other employees may be
sufficient to satisfy the requirement that employees act toward a specific
remedy.64 Courts have recognized that it is not necessary for a contractual
agreement that authorizes collective bargaining to be in place in order for
employee activity to constitute purposeful bargaining.65 For example, the
U.S. Court of Appeals for the Eighth Circuit recognized as protected
concerted activity an incident in which an employee attempted to ask
employment-related questions at a captive audience meeting. 66 Finally, it is
longstanding precedent that even if an employee is engaging in an
otherwise protected concerted activity, discharge may be permissible if
the employer possesses a legitimate reason or motivation to let the
employee gosuch as when an employee engages in unlawful or
otherwise improper conduct.67 Congresss purpose in passing the Act was
not to infringe upon the loyalties that are essential in an employment
relationship.68 Any activity that may be characterized as disloyal in nature,
61
See Rockwell Intl Corp. v. NLRB, 814 F.2d 1530, 1534 (11th Cir. 1987).
Media Gen. Operations, Inc. v. NLRB, 394 F.3d 207, 211 (4th Cir. 2005) (The
determination of whether an action is protected is based on its purpose.); cf. Pioneer
Natural Gas Co. v. NLRB, 662 F.2d 408, 418 (5th Cir. 1981) (refusing to find concerted
activity when an employee felt a certain way but did not suggest collective action based on
such feelings).
62
63 Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964) (*I+nasmuch as
almost any concerted activity for mutual aid and protection has to start with some kind of
communication . . . it would come very near to nullifying the rights of organization and
collective bargaining guaranteed by . . . the Act if such communications are denied protection
because of lack of fruition.).
64 NLRB v. Office Towel Supply Co., 201 F.2d 838, 841 (2d Cir. 1953) (indicating that a
comment made in the absence of any other discussion could qualify as a statement that was
calculated to induce group action by the employees to correct a grievance).
65
See Koch Supplies, Inc. v. NLRB, 646 F.2d 1257, 1259 (8th Cir. 1981).
F.W. Woolworth Co. v. NLRB, 655 F.2d 151, 153-54 (8th Cir. 1981).
67 NLRB v. Local Union No. 1229, 346 U.S. 464, 473 (1953) (The courts have firmly
established the rule that under existing provisions of section 7 of the National Labor Relations
Act, employees are not given any right to engage in unlawful or other improper conduct.);
accord Signal Oil & Gas Co. v. NLRB, 390 F.2d 338, 341 (9th Cir. 1968) (noting that where an
employee has engaged in unlawful or improper activities, the Act does not perforce
immunize the employee from responsive employer action).
68 NLRB v. Knuth Bros., Inc., 537 F.2d 950, 957 (7th Cir. 1976). Courts have noted the
difference between concerted activity that infringes upon loyalty and that which may be
66
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even if it otherwise would be a concerted activity, is improper and may

result in an employees lawful termination.69 In fact, disloyalty has been
recognized as the most elemental cause for discharge. 70 Such
indefensible behavior has not been afforded protection because it is
deemed unnecessary and crosses the line beyond which employees need to
act in order to carry out their legitimate concerted activities. 71 Unlawful
activity, such as libel,72 has been regarded as indefensible and beyond the
protections afforded by the NLRA, even in instances when undertaken in
pursuit of collective bargaining.73 While the Board does afford some
protection to statements that happen to be inaccurate, it does not interpret
the Act as giving either party license to injure the other intentionally by
circulating defamatory or insulting material known to be false.74
deemed prejudicial against the employer, indicating that prejudicial behavior remains
protected behavior. See Misericordia Hosp. Med. Ctr. v. NLRB, 623 F.2d 808, 815 (2d Cir. 1980)
(quoting NLRB v. Circle Bindery, Inc., 536 F.2d 447, 452 (1st Cir. 1976)).
69 Knuth Bros., Inc., 537 F.2d at 953 (Section 7 . . . does not immunize an employee from
discharge for acts of disloyalty or misconduct merely because those acts were associated with
protected activity.). But see Sierra Publg Co. v. NLRB, 889 F.2d 210, 216 (9th Cir. 1989)
(*T+he NLRB has progressively narrowed the areas of activity found to be unprotected
because of disloyalty.).
70 NLRB v. Red Top, Inc., 455 F.2d 721, 727 n.6 (8th Cir. 1972) (quoting Local Union No.
1229, 346 U.S. at 472).
71 Shelly & Anderson Furniture Mfg. Co. v. NLRB, 497 F.2d 1200, 1204 (9th Cir. 1974);
Sierra Publg Co., 889 F.2d at 215.
72 Libel is a defamatory statement expressed in a fixed medium, esp*ecially+ writing but
also a picture, sign, or electronic broadcast. BLACKS LAW DICTIONARY 999 (9th ed. 2009).
*T+he most repulsive speech enjoys immunity provided it falls short of a deliberate or
reckless untruth. But it must be emphasized that malicious libel enjoys no constitutional
protection in any context. Jolliff v. NLRB, 513 F.3d 600, 609 (6th Cir. 2008) (quoting Linn v.
United Plant Guard Workers, 383 U.S. 53, 63 (1966)).
73 Tex. Instruments, Inc. v. NLRB, 637 F.2d 822, 830 (1st Cir. 1981) (indicating that
violations of both state and federal law operate to move otherwise protected activity beyond
the scope of the NLRA); see Hagopian & Sons, Inc. v. NLRB, 395 F.2d 947, 953 (6th Cir. 1968).
74 Old Dominion Branch No. 496, Natl Assn of Letter Carriers v. Austin, 418 U.S. 264,
272 (1974) (emphasis added) (quoting Linn, 383 U.S. at 61) (discussing that the operative
aspect of the Boards analysis will often be the mindset of the employees, e.g., whether they
are acting knowingly).
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2.
165
Unprotected Employee Conduct Under 7
The protections afforded by the NLRA are relatively flexible. 75 The

NLRA permits some leeway in an employees right to act impulsively
during his course of employment, 76 which counterbalances an employers
right to maintain order and respect.77 Even if an activity is concerted, such
classification is not dispositive as to available protection. 78 An employee
may engage in concerted activity in such an abusive manner that he loses
the protection of Section 7.79 *U+nlawful, or violent, or insubordinate
activities are not protected by the NLRA.80 Moreover, those acts that are
considered indefensible, such as libeling a supervisor or employer, are not
protected.81 This is because Congress did not intend to weaken the
underlying contractual bonds and loyalties essential to a suitable
employer-employee relationship.82
Words and actions that constitute mere griping or are predicated on
offensive purposes are not given protected status.83 Put simply, individual
75 See National Labor Relations Act 2, 29 U.S.C. 152(9) (2006). While flexible as to
what specific actions may be afforded protection, the concept is definite in its scopethe
activity must contemplate a dispute that concerns conditions of employment. See Hagopian &
Sons, Inc., 395 F.2d at 951.
76 See Boaz Spinning Co. v. NLRB, 395 F.2d 512, 514 (5th Cir. 1968).
77 F.W. Woolworth Co. v. NLRB, 655 F.2d 151, 154 (8th Cir. 1981); see discussion infra
Part I.C.1.
78 See Mobil Exploration & Producing U.S., Inc. v. NLRB, 200 F.3d 230, 238 (5th Cir.
1999); discussion supra Part I.B.2.
79
Mobil Exploration & Producing, 200 F.3d at 238.

Hagopian & Sons, Inc., 395 F.2d at 952-53 (emphasis added) (citations omitted); accord
Tex. Instruments, Inc. v. NLRB, 637 F.2d 822, 830 (1st Cir. 1981) (*C+oncerted activity that
violates state or federal law, that irresponsibly exposes an employers property to possible
damage or that constitutes insubordination or disloyalty may be found to fall outside the
scope of the NLRA even if undertaken in the interest of self-organization or collective bargaining.)
(emphasis added); see also St. Lukes Episcopal-Presbyterian Hosps., Inc. v. NLRB, 268 F.3d
575, 580 (8th Cir. 2001) (*E+mployee public statements are [only] protected concerted activity
if they are directly related to an ongoing labor dispute, are not a disparagement of the Companys
reputation or the quality of the Companys product, and are not maliciously motivated. (emphasis
added) (quoting NLRB v. Greyhound Lines, Inc., 660 F.2d 354, 356 (8th Cir. 1981))).
80
81 Hagopian & Sons, Inc., 395 F.2d at 953 (citing NLRB v. Local Union No. 1229, 346 U.S.
464 (1953)); see St. Lukes Episcopal-Presbyterian Hosps., Inc., 268 F.3d at 580 (An employee may
not appeal to the public by conveying information with reckless disregard of its truth or
falsity. (quoting Montefiore Hosp. & Med. Ctr. v. NLRB, 621 F.2d 510, 517 (2d Cir. 1980))).
Indefensible has also been packaged with disloyal. See Shelley & Anderson Furniture
Mfg. Co. v. NLRB, 497 F.2d 1200, 1204 (9th Cir. 1974).
82
83
NLRB v. Knuth Bros., Inc., 537 F.2d 950, 957 (7th Cir. 1976).
See Southwest Latex Corp. v. NLRB, 426 F.2d 50, 56 n.3 (5th Cir. 1970).
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griping and complaining is not a protected activity. 84 Moreover, even if

registered by a group, courts have stated that complaints of this manner
are not protected.85 It is a longstanding principle that activity that does not
contemplate a future goal, whether undertaken by an individual or group,
is better classified as mere talk or mere griping. 86 For example, the
Fourth Circuit refused to recognize concerted activity where an
employee used words such as b _ _ _ _ _ d and redneck son-of-ab _ _ _ h to describe his supervisor.87 The court held that the employee had
only embarked on a personal mission and that the words he utilized were
devoid of substantive content and of meaningful value. 88 Even though
this axiom is widely endorsed by the courts, it is not without limitwhen
the griping coalesces with expression inclined to produce group or
representative action, the statute protects the activity. 89
Egregious and offensive behavior may also be unprotected by the
NLRA.90 Protection is neither afforded to employees who act with
improper motives nor to flagrant cases. 91 Such activity is deemed
insubordinate where the employee carries out activities that are
detrimental to the business of the employer or threaten physical harm;
these activities extend beyond bargaining since they contemplate the
unlawful.92
C. The Rights and Duties of Employers: 8 of the NLRA
While much of the NLRA focuses on employee actions, the statute also
provides some proscriptions for employer conduct. 93 Section 8 of the Act
details unfair labor practices by employers: It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 157 of this title. 94 This
definition is dependent on what its limitations are, and, as a result, is
necessarily vaguelaws impose few limitations on the private
84
Id.
NLRB v. Datapoint Corp., 642 F.2d 123, 128 (5th Cir. 1981) (*T+he griping of a group
of employees . . . hardly rises to the level of concerted activities.).
85
86
87
88
89
90
91
92
93
94
Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964).
Media Gen. Operations, Inc. v. NLRB, 394 F.3d 207, 211 (4th Cir. 2005).
Id.
Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1348 (3d Cir. 1969).
See F.W. Woolworth Co. v. NLRB, 655 F.2d 151, 154 (8th Cir. 1981).
NLRB v. Red Top, Inc., 455 F.2d 721, 727 (8th Cir. 1972).
See id. at 728.
See National Labor Relations Act 8, 29 U.S.C. 158 (2006).
Id. 158(a).
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167
employer.95 In addition to being feebly restricted, employers have

numerous broad controls and theories to regulate employee conduct: atwill employment, duty of loyalty, defamation, criminal prosecution, and
effective and comprehensive policies.96
1.
Employer Rights Under 8 of the NLRA
The Act does not attempt to interfere with an employers right to

maintain day-to-day business operations; the NLRA recognizes an
employers right to promote and discharge employees.97 Thus, if an
employee is employed at-will, an employer who resents any activity of . . .
[the] employee has the legal authority to discharge that individual, so
long as the discharge is not an attempt to interfere with the employees
rights under 7.98 An employers decision to discharge must be in good
faith and based on good cause. 99 Even when the potential for a dual
motive existsthat is, the employer has both valid and invalid reasons to
discharge the employeethe discharge will not constitute an unfair labor
practice unless the permissible ground alone would not have led to the
firing.100 However, *t+he provision against discrimination could be
virtually nullified if the Board were required to accept without question the
reasons given by the employer *for discharge+. 101 The question of the
95 HUBBARTT, supra note 18, at 2. This vagueness may be due to the balancing test that is
implicit in the NLRA. The test undertaken by the Board is clearly one of choosing among
several motivations or purposes and weighing the respective interests of employers and
employees. Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 326 (1965) (White, J., concurring).
96
KAPLAN ET AL., supra note 16, at 234, 239. The establishment of effective and
comprehensive policies by an employer, including social-networking regulations, is an
effective method in forming employer and employee expectations and will be discussed in
detail below as a potential remedy for the present problems encountered in the workplace. See
id. at 239; infra Part IV.A. See generally City of Ontario v. Quon, 130 S. Ct. 2619 (2010) (holding
citys search of police officers text messages for a legitimate work-related purpose
constitutional and in accord with the citys computer policy).
97 See, e.g., Appalachian Electric Power Co. v. NLRB, 93 F.2d 985, 989 (4th Cir. 1938)
(The *A+ct does not interfere with the normal exercise of the right of the employer to select its
employees or to discharge them. (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,
45 (1937))).
98 Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964); see NLRB v. Knuth
Bros., Inc., 537 F.2d 950, 956 (7th Cir. 1976) (noting that an employer has a right to protect its
business interests and may discharge an employee for cause).
99
See NLRB v. Blue Bell-Globe Mfg. Co., 120 F.2d 974, 975-76 (4th Cir. 1941).
See NLRB v. Charles Batchelder Co., 646 F.2d 33, 38 (2d Cir. 1981). Under this
framework, the magnitude of the impermissible ground is immaterial as long as it was the
but for cause of the discharge. Id. (quoting Waterbury Cmty. Antenna, Inc. v. NLRB, 587
F.2d 90, 98 (2d Cir. 1978)).
100
101
Blue Bell-Globe Mfg. Co., 120 F.2d at 976. In some cases, it may be that the employers
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motive for discharge is a factual determination to be made by the Board

and is to be left undisturbed by a reviewing court. 102 The Board may not
supplant its judgment for that of the employer and is limited to acting as
fact finder and only reinstating those individuals who have been
discriminatorily discharged.103
Employers also have the right to maintain discipline in the
workplace.104 *T+he protective mantle of Section 7 is tempered by the
employers right to exact a days work for a days pay and to maintain
discipline, and does not reach activities which inherently carry with them a
tendency toward, or likelihood of, disturbing efficient operation of the
employers business.105 The employee may lose 7 protections if he
engages in the otherwise concerted activity in an abusive manner. 106
Employers are not required to wait for resentment and employee discord
to amass, but rather may be proactive and discipline employees prior to the
occurrence of a confrontational incident.107 Still, an employers right to
discipline is not unchecked. When an employee is engaging in protected
activity there is some leeway afforded to the individual, and courts
undertake a balancing of interests.108 If the employers right to maintain
conduct carries with it an inference of unlawful intention so compelling that it is justifiable to
disbelieve the employers protestations of innocent purpose. Am. Ship Bldg. Co. v. NLRB,
380 U.S. 300, 311-12 (1965).
102 Am. Smelting & Ref. Co. v. NLRB, 126 F.2d 680, 688 (8th Cir. 1942) (The duty to
weigh and test the evidence is . . . on the Board. This court may not overrule a fact conclusion
supported by substantial evidence . . . . Only when the evidence is such that in a jury trial it
would be insufficient to support a like verdict may the judges interfere.); see also Blue BellGlobe Mfg. Co., 120 F.2d at 975.
103 NLRB v. Williamson-Dickie Mfg. Co., 130 F.2d 260, 264 (5th Cir. 1942). In acting as fact
finder, the Board does give some deference to the explanation proffered by the employer. See
Tex. Instruments, Inc. v. NLRB, 637 F.2d 822, 834 (1st Cir. 1981) (It is important in cases
involving business judgment that the Board not set up its own standard, and then conclude
that, since the employer had another, it was ipso facto suspect. (quoting NLRB v. E. Smelting
& Ref. Corp., 598 F.2d 666, 673 (1st Cir. 1979))).
104 See Caterpillar Tractor Co. v. NLRB, 230 F.2d 357, 358 (7th Cir. 1956); see also NLRB v.
Charles Batchelder Co., 646 F.2d 33, 38 (2d Cir. 1981) (*A+n employer, in the pursuit of the
right to manage his enterprise, is not left impotent to discipline an employee for misconduct
in the course of employment or for other valid reasons.). This right to discipline may actually
become a duty to maintain order, as an employee may raise safety concerns as a protected
activity under 7. See NLRB v. Leslie Metal Arts Co., Inc., 509 F.2d 811, 814 (6th Cir. 1975).
105
Caterpillar Tractor Co., 230 F.2d at 358.

Mobil Exploration & Producing U.S., Inc. v. NLRB, 200 F.3d 230, 238 (5th Cir. 1999); see
discussion supra Part I.B.2.
106
107
Caterpillar Tractor Co., 230 F.2d at 359 (*The company+ was under no compulsion to
wait until resentment piled up and the storm broke before it could suppress the threat of
disruption by exercising its right to enforce employee discipline.).
108
Boaz Spinning Co. v. NLRB, 395 F.2d 512, 514 (5th Cir. 1968) (quoting NLRB v. Thor
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169
order and respect is deemed the greater of the two interests, then discipline
of the conducteven if the activity is otherwise protected by 7is
appropriate.109
2.
Duties Imposed on Employers by 8 of the NLRA
Employers also have a duty to be accountable and responsive to their

employees.110 They have an obligation to establish the means to facilitate
employee conversationwhether with coworkers or by feedback to the
employer.111 Employers may only restrict discussion if the employers
interest in confidentiality outweighs the employees interests, and a general
directive that employees may never discuss their own observations and
complaints is considered unduly broad. 112 Employers have a duty to both
confer with employees or their authorized representatives and to listen to
their complaints.113 Known as collective bargaining, the employer has a
duty to discuss work-related concerns with his employees.114 This
obligation is limited, however, by the actual authority of representatives or
employeesif a purported representative does not affirmatively prove to
the employer his position as such, then the employers duty is
Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965)); see also J.P. Stevens & Co. v. NLRB, 547 F.2d
792, 794 (4th Cir. 1976) (In determining whether an action is protected, the Board must weigh
these rights [of employers and employees+ in a balancing process.); Caterpillar Tractor Co., 230
F.2d at 358 (Opportunity to organize and proper discipline are both essential elements in a
balanced society. (quoting Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1944))). But
see Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 310 (1965) (*T+he Acts provisions are not
indefinitely elastic, content-free forms to be shaped in whatever manner the Board might
think best conforms to the proper balance of bargaining power.).
109 Boaz Spinning Co., 395 F.2d at 514 (quoting Thor Power Tool Co., 351 F.2d at 587);
Corriveau & Routhier Cement Block, Inc. v. NLRB, 410 F.2d 347, 351 (1st Cir. 1969) (The fact
that the employee was engaged in protected activity does not mean that the employer loses all
interest in what he is doing.).
110 See Caterpillar Tractor Co., 230 F.2d at 358 (*T+hese rights are not unlimited in the
sense that they can be exercised without regard to any duty which the existence of rights in
others may place upon employer or employee. (quoting Republic Aviation Corp., 324 U.S. at
798)).
111 See Phoenix Transit Sys. v. NLRB, Nos. 02-1165, 02-1210, 2003 WL 21186045, at *525
(D.C. Cir. May 14, 2003).
112 See id.
113 Texarkana Bus Co. v. NLRB, 119 F.2d 480, 484 (8th Cir. 1941).
114 National Labor Relations Act 8, 29 U.S.C. 158(a)(5) (2006); NLRB v. Burns Intl Sec.
Servs., Inc., 406 U.S. 272, 296 (1972) (Rehnquist, J., concurring). Examples of the topics that
employers must be willing to discuss with employees include wages, hours, safety
conditions, and other terms and conditions of employment. Curley & Morway, supra note 28,
at 112.
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nonexistent.115
D. Social Networking: The New Era of Workplace Interaction
While the regulations of the NLRA governing the employer-employee
relationship have been in place since the early twentieth century, 116 the
proliferation of social-networking websites has primarily occurred within
the past decade.117 A social network is a cluster of people connected for a
specific reason.118 The Internet facilitates the creation and maintenance of
such networks through websites that encourage real-time communication
during which users can share information, photographs, videos, and
more.119 Popular social-networking sites include Facebook, Twitter,
YouTube, MySpace, LinkedIn, and Yelp.120 These sites bring together a
community of users with different purposes. For example, LinkedIn
establishes a professional network and connects users for business
objectives;121 Yelp provides a forum for users to submit and read reviews of
businesses and restaurants.122
Though such sites are successful in forming communities of
individuals with like interests, they raise new legal issues and present
challenges to businesses due to the activities of employees.123 Employers
may encounter privacy issues, cybersmearing, and situations of
harassment when employees post on networking sites.124 Employee activity
of this type may place pressure on the employerportraying the company
in a negative manner, disclosing confidential information, or simply
discussing controversial topics that may unwittingly come to be identified
115 See Texarkana Bus Co., 119 F.2d at 484. If an individual was not designated as
spokesperson, the courts traditionally apply a totality of the evidence test to determine if the
activity was indeed concerted in nature. Rockwell Intl Corp. v. NLRB, 814 F.2d 1530, 1535
(11th Cir. 1987).
116 WALTER E. OBERER ET AL., CASES AND MATERIALS ON LABOR LAW: COLLECTIVE
BARGAINING IN A FREE SOCIETY 99 (5th ed. 2002).
117 See, e.g., Facebook, FACEBOOK, http://www.facebook.com/#!/facebook?sk=info (last
visited Oct. 17, 2011); YOUTUBE, supra note 14.
118
PETER K. RYAN, SOCIAL NETWORKING 4 (2011).

Id. at 4-6.
120 Lori E. Lesser, Social Networks and Blogs, in INFORMATION TECHNOLOGY LAW INSTITUTE
2010: OPPORTUNITIES IN CLOUD COMPUTING, BLOGS, BRAND PROTECTION AND TARGETED
MARKETING 101, 105 (2010).
121 About Us, LINKEDIN, http://press.linkedin.com/about/ (last visited Oct. 17, 2011).
122 About Us, YELP, http://www.yelp.com/about (last visited Oct. 17, 2011).
123 Lesser, supra note 120, at 106; see infra Part II.
124 Lesser, supra note 120, at 153-55. Cybersmearing is an employees use of the internet
to denigrate his employer. Id. at 154.
119
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171
with the company.125 The difficulties facing employers attempting to

regulate their employees conduct on social-networking sites is
compounded by the fact that employment law is in flux in regard to such
postings.126 As a result, it is difficult to establish the legal ramifications of
postings that fail to cross the line from mere griping to concerted
activity.127
ANALYSIS
II. Ranting on Social-Networking Sites and Its Failure to Satisfy the
Leslie Metal Arts Co. Test for Concerted Activity
A. Under Leslie Metal Arts Co.s Four-Prong Analysis, an Individual
Employee that Utilizes Social-Networking Sites to Post Disparaging
Comments About His Employer Is Not Engaging in Concerted
Activity.
There are four elements that have been recognized as essential to
establishing that an employee has engaged in concerted activity that is
protected under 7 of the NLRA: (1) there must be a work-related
complaint or grievance; (2) the concerted activity must further some group
interest; (3) a specific remedy must be sought through such activity; and (4)
the activity should not be unlawful or otherwise improper.128 A
hypothetical activity that will be used for analysis will be an individual
employee posting, during off-duty hours, that his boss is crazy on the
employees personal Facebook page, which may be seen and responded to
by coworkers.129
1.
Work-Related Complaint or Grievance
When an employee utilizes expletives and posts disparaging remarks

about his employer on a social-networking site, the activity is potentially
one that falls beyond the scope of contemplating the conditions of
125 See William C. Martucci, Kristen A. Page & Jennifer K. Oldvader, Social Networking in
the Workplace: Policies and Pitfalls, 17 EMP. L. STRATEGIST 7, 7 (2009).
126 REBECCA L. TORREY, ADVISING CLIENTS ON TODAYS AND TOMORROWS EMPLOYMENT
LAW ISSUES *2 (2011), available at 2011 WL 601172.
127
See id.
NLRB v. Leslie Metal Arts Co., 509 F.2d 811, 813 (6th Cir. 1975) (citing Shelley &
Anderson Furniture Mfg. Co. v. NLRB, 497 F.2d 1200, 1202-03 (9th Cir. 1974)); see supra Part
I.B.1.
128
129
See infra Part II.A.1-II.A.4.
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employment.130 The activity is attenuated in nature because its purpose is

not directed at altering working conditions, nor does it bear the likelihood
of having a reasonably significant impact on such conditions. 131 A post
that only calls a supervisor a name does not contemplate the work
environment because there is no legitimate grievance; it is just a passing
remark based on mere personal antipathy toward a superior. 132 The
remark does not depend on the employees interest as an employee, in that
he could express the sentiment that the individual who is his boss is insane
regardless of his employment at the company. 133 Even if the post was based
on a legitimate concern, coworkers would be unable to comprehend the
basis for the remarks because the employee has failed to relay any mode of
action that could possibly rectify the grievance. 134
To be protected under 7, the employees sentiment does not have to
be expressed in a manner that is void of all emotional criticism, 135 so long
as it contemplates a dispute that concerns the conditions of employment.136
Were the employee to post, My boss is crazy and needs to turn on the heat
when it is freezing in the warehouse, the employee would be writing with the
objective of raising awareness and to have an impact upon the conditions
that he hopes to changethe temperature of the building.137 This would
satisfy the first prong of the Leslie Metal Arts Co. test because it would
specifically address the conditions of employment, akin to other protected
situations in which employees attempted to ameliorate contract terms 138 or
those in which protests were conducted in order to express concern over
the incompetence of a foreman. 139
130
See supra text accompanying notes 49-53.

See Leslie Metal Arts Co., 509 F.2d at 813 (quoting G & W Electric Specialty Co. v.
NLRB, 360 F.2d 873, 877 (7th Cir. 1966)).
131
132
See id.; see also Cleaver-Brooks Mfg. Corp. v. NLRB, 264 F.2d 637 (7th Cir. 1959).
See Eastex, Inc. v. NLRB, 437 U.S. 556, 567-68 (1978).
134 See supra text accompanying notes 62-66.
135 See Boaz Spinning Co. v. NLRB, 395 F.2d 512, 514 (5th Cir. 1968).
136 Hagopian & Sons, Inc. v. NLRB, 395 F.2d 947, 951 (6th Cir. 1968). The law favors a
broad exchange of viewpoints, and each situation is to be examined on its own facts. Sierra
Publg Co. v. NLRB, 889 F.2d 210, 220 (9th Cir. 1989).
133
137 See Leslie Metal Arts Co., 509 F.2d at 813 (quoting G & W Electric Specialty Co. v.
NLRB, 360 F.2d 873, 877 (7th Cir. 1966)).
138
See, e.g., Koch Supplies, Inc. v. NLRB, 646 F.2d 1257, 1259 (8th Cir. 1981); Mushroom
Transp. Co. v. NLRB, 330 F.2d 683, 684-85 (3d Cir. 1964).
139 See generally NLRB v. Gurensey-Muskingum Electric Co-Operative, Inc., 285 F.2d 8, 12
(6th Cir. 1960).
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2.
173
Further Some Group Interest
An individual employees posting of disparaging remarks about his

supervisor does not easily satisfy the requirement that a group interest be
advanced by the activity.140 When an individual logs on to a socialnetworking site from home and publishes slanderous statements on his
personal profileMy boss is crazythere may be no intent to induce,
pursue, or even contemplate group action.141 The post does not provide a
specific cause for coworkers to support. It is in kind with, This is a hell of
a place, a remark that the U.S. Court of Appeals for the Second Circuit
refused to recognize as instigating group action. 142 In fact, even if the
employee does intend to further a mutual group interest, there is no
guarantee that any other employees will even see or respond to the
comments, as is required for an individual statement to be deemed
concerted activity in furtherance of a group interest. 143 Contrary to
assertions equating social-networking sites to a virtual water cooler,
there is one key difference.144 Talking in person necessitates that the other
party will hear and react to an individuals statement, even if that reaction
is to walk away without commenting. 145 On the Internet there is no
guarantee that a coworker will read or be exposed to the employees initial
statement.146 Even if coworkers do read the comments, there is precedent
that establishes that the mere making of statements in coworkers presence
does not establish a group interest.147 Rather, the postings are wholly
speculative in character, and may not be afforded protection.148
This is not to say that there are not instances when an employee could
utilize social-networking sites to promulgate a group interest.149 For
instance, in Pietrylo v. Hillstone Restaurant Group a waiter created a group
page on a social-networking site that could be accessed by invitation
140

See Mushroom Transp. Co., 330 F.2d at 685.
142 See NLRB v. Office Towel Supply Co., 201 F.2d 838, 840-41 (2d Cir. 1953).
143 See Mushroom Transp. Co., 330 F.2d at 685. In Dawnmarie Souzas case, coworkers
responded and incited her to make further disparaging comments. See supra note 4 and
accompanying text. Still, these comments continued to be negative in tone, and did not
promote the requisite group interest that 7 of the NLRA contemplates. See National Labor
Relations Act 7, 29 U.S.C. 157 (2006).
144 Hananel, supra note 1.
145 See Office Towel Supply Co., 201 F.2d at 840-41.
146 Cf. id. (noting that complaints made in the physical presence of coworkers may
represent an indispensible preliminary step to employee self organization).
141
147
148
149
See id.
See E.I. du Pont de Nemours & Co. v. NLRB, 707 F.2d 1076, 1079 (9th Cir. 1983).
Rand, supra note 17, at 204-05.
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only.150 Pages such as the one in Pietrylo could be utilized to promote a

positive, work-related group interestto exchange ideas about working
conditions and contemplate future actions that could ameliorate employee
concerns.151 In such a scenario, an employee could create a limited-access
group with the primary purpose of addressing a work-related concern,
such as the temperature in the warehouse. 152 An employee could post
comments about how to attain shared goals, such as acquiring better
heating devices and ameliorating working conditions, and ensure that the
coworkers that are members of the group are directly participating in the
conversation.153 This use of the social-networking media would be in
accord with the purposes underlying the NLRA, including the right to selforganize.154 The difference between the aforementioned posting on ones
personal profile and the creation of a mutual group to facilitate discussion
is one of purposecreation of the group page displayed the employees
objective of initiating conversation regarding a condition of employment
that required redress.155
3.
Specific Remedy Sought Through Activity156
An employee who posts disparaging remarks on a social-networking

site must act purposefully when posting since 7 requires that an individual
engage in the activity for mutual aid or protection.157 Again, the
hypothetical of the employee posting, My boss is crazy, is probative.158
150 Pietrylo v. Hillstone Rest. Grp., No. 06-5754 (FSH), 2008 WL 6085437, at *1 (D.N.J. July
25, 2008); Rand, supra note 17, at 204-05.
151

153 See supra text accompanying notes 54-61.
154 National Labor Relations Act 7, 29 U.S.C. 157 (2006). Use of a social-networking
site for group organization may fail to satisfy the other requisites of the Act in order to make it
concerted activity. See Rand, supra note 17, at 205. For example, Pietrylos purpose in forming
the group was to vent about any BS we deal with *at+ work without any outside eyes spying
on us. . . . Let the s**t talking begin. Id. at 204. Clearly, this type of conversation may amount
to mere griping and fall outside the bounds of protected activity. See discussion supra Part
I.B.2.
152
155 See Anchortank, Inc. v. NLRB, 618 F.2d 1153, 1161 (5th Cir. 1980) (citing and
discussing Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 684-85 (3d Cir. 1964)).
156 Discussion of this prong of the concerted activity analysis necessarily overlaps with
the consideration that there be a mutual, group interest advanced by an employee or
employees. The satisfaction of a group interest is typically akin to the satisfaction of the
remedy sought. See supra Part II.A.2.
157 See National Labor Relations Act 7, 29 U.S.C. 157; Pioneer Natural Gas Co. v.
NLRB, 662 F.2d 408, 418 (5th Cir. 1981).
158
See supra text accompanying note 129.
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175
Although it is foreseeable that an argument could be made that the posting

constitutes a preliminary step toward concerted activity, at least one
court has squarely rejected this application in a similar situation where a
remark was made in the presence of coworkers.159 Moreover, a comment
posted on a social-networking site is not made directly in the presence of
other employees or directed specifically at managementtwo important
factors that the Eighth Circuit considered when upholding employee
activity in the absence of a collective bargaining agreement. 160
This is not to say that indirect comments, in all circumstances, are
unprotected.161 What about a workplace bulletin board? Conceivably, an
individual employee could use this as a forum to post a concern about
workplace conditions.162 But there are marked differences between posting
on a bulletin board and posting to a social-networking site. In the first
circumstance, coworkers are assured to be in the workplace; this level of
guarantee is not present for social-networking sites, as an individual could
establish an account and then abandon his activity on the site. 163 Second,
the nature of the content of the postings necessarily differs. The degree of
criticism that an individual employee will feel free to post on his private
social-network page will be greater than when he is assured that his
superiors are going to read the messages content.164
As discussed above, the posting of a specific grievance by an
individual employee or the possibility for the establishment of a group
page on a social-networking website to promulgate and provide support
for a specific remedy would likely be protected activity under 7.165 My
boss is crazy and needs to turn on the heat when it is freezing in the warehouse,
contemplates the attainment of a future goal: warmer working
conditions.166 Coworkers would be aware of their coworkers concerns,
would have an opportunity to share their thoughts on the temperature in
the warehouse, and would be able to consider the best course of action to
159
See NLRB v. Office Towel Supply Co., 201 F.2d 838, 840-41 (2d Cir. 1953) (rejecting the
Boards classification of a remark addressed directly to coworkers as a preliminary step to
employee organization and noting that more was required for the comment to rise to the
level of an initial step for mutual action).
160 See F.W. Woolworth Co. v. NLRB, 655 F.2d 151, 153-54 (8th Cir. 1981); Koch Supplies,
Inc. v. NLRB, 646 F.2d 1257, 1259 (8th Cir. 1981).
161
See Guardian Indus. Corp. v. NLRB, 49 F.3d 317, 321 (7th Cir. 1995) (discussing the
circuits treatment of posting of union solicitation on workplace bulletin boards).
162 Cf. F.W. Woolworth Co., 655 F.2d at 153-54 (acknowledging that activity may be
concerted even where only one employee is involved).
163
164
165
166
See discussion infra Part III.A.

See discussion infra Part III.A.
176
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attain their mutual goal.167

4.
Activity Is Not Unlawful or Otherwise Improper 168
The situation in which an individual employee posts disparaging

comments is at the crossroads of libel (unlawful activity) and disloyalty
(improper conduct).169 First, an employees posting on a social-networking
site may be considered libelous in nature in certain situations. 170 By
publishing words in a fixed medium, the writer has acted deliberately and
knowingly in disparaging his supervisor or the company for which he
works.171 Moreover, contrary to the NLRBs characterization of socialnetwork postings as equivalent to talking at the water cooler, the
employee submissions to such sites are public in nature and are viewable
by those outside the confines of the break room or office.172 This public
disparagement removes the employees conduct from the protected
confines of 7 and into the realm where employers are permitted to
lawfully discharge individuals for airing otherwise private matters. 173
Second, the posting of disparaging comments about ones supervisors or
workplace is ripe for characterization as the most elemental cause of
dischargedisloyalty.174 The posting of critical and shocking comments
on a website is not a prerequisite for obtaining relief against perceived
167

Examining this element of the test is best accomplished by reviewing what activities
are unlawful or otherwise improper in the labor context, rather than by attempting to capture
the endless possibilities of concerted activities that are permissible. Contra Am. Ship Bldg. Co.
v. NLRB, 380 U.S. 300, 322-23 (1965) (White, J., concurring); NLRB v. Babcock & Wilcox Co.,
351 U.S. 105, 111-12 (1956) (quoting NLRB v. Stowe Spinning Co., 336 U.S. 226, 231 (1949)).
168
169
See Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532, 537 (D.C. Cir. 2006).
See supra note 72 and accompanying text. An individual employees statement, My
boss is crazy, does not cross the line of libel, but it is easy to conceive a scenario in which the
employee selects choicer words to relay his sentiments about his supervisor or employer.
170
171 Old Dominion Branch No. 496, Natl Assn of Letter Carriers v. Austin, 418 U.S. 264,
272-73 (1974) (noting that federal labor laws pre-empt state law with regard to defamatory
statements made during labor disputes, which were published without knowledge of their
falsity or reckless disregard for the truth.). The intent exercised by the individual is a key
inquiry in libel situations that develop in the employment context, and the time and effort
involved in logging on to a computer, opening a social-networking site, typing the message,
and committing to submit the message for others view is indicative of the deliberateness and
knowledge possessed by the employee. See id.
172
See St. Lukes Episcopal-Presbyterian Hosps., Inc. v. NLRB, 268 F.3d 575, 580 (8th Cir.
2001); supra text accompanying note 8; discussion infra Part III.A.
173 See St. Lukes, 268 F.3d at 580.
174 NLRB v. Red Top, Inc., 455 F.2d 721, 727 n.6 (8th Cir. 1972) (quoting NLRB v. Local
Union No. 1229, 346 U.S. 464, 472 (1953)).
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177
injustices in the work place.175 The ranting that occurs is merely to incite the
emotional responses of coworkers and any witnessing supervisors.176 In
addition, the action takes on a particularly disobedient tone, as the
employee undertakes to publicly humiliate the company and its
management rather than working through internal measures to satisfy a
potential objective.177
B. Even if an Employees Posting on a Social-Networking Website
Would Otherwise Constitute Concerted Activity, He Is Not
Protected Because It Amounts to Mere Griping.
Even if individual employee action may be characterized as concerted
activity,178 such action is still subject to review to assess whether it
amounts to mere griping.179 The courts extensive history of refusing to
provide NLRA protection to individual employee complaints is
substantial, applicable precedent courts can rely upon when reviewing the
likely treatment of disparaging posts on social-networking sites.180 An
individuals decision to utilize the web to publicize personal grievances
My boss is crazyis negative and responsive in nature, failing to
contemplate a future goal.181 The NLRA cannot provide protection to such
grousing merely because it potentially is made in the presence of
coworkers on a social-networking site;182 providing protection to
inchoate comments would prevent the employer from discharging an
individual who severely condemned the employer or his ways in a public
forum.183 When an employee posts a disparaging comment about his
employer, he is merely expressing personal animosity and placing his
personal grievances into a public arena. 184 Particularly in situations where
an employee chooses choice words, such as calling his superior crazy to
elicit a reaction, the communication will not be deemed concerted
activity because the words are devoid of substantive content and *of+
175
See Shelly & Anderson Furniture Mfg. Co. v. NLRB, 497 F.2d 1200, 1204 (9th Cir. 1974).
See Red Top, Inc., 455 F.2d at 726.
177 See Media Gen. Operations, Inc. v. NLRB, 394 F.3d 207, 211 (4th Cir. 2005).
178 See discussion supra Part I.B.1.
181 See Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964).
182 See NLRB v. Office Towel Supply Co., 201 F.2d 838, 840-41 (2d Cir. 1953).
183 Id.; see discussion supra Part I.B.2.
184 See Koch Supplies, Inc. v. NLRB, 646 F.2d 1257, 1259 (8th Cir. 1981); NLRB v. Leslie
Metal Arts Co., 509 F.2d 811, 814 (6th Cir. 1975). See generally Rockwell Intl Corp. v. NLRB,
814 F.2d 1530 (11th Cir. 1987).
176
178
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meaningful value.185
A statement that would otherwise classify as mere griping will be
protected when it contemplates a future goal which is intended to instigate
group action.186 Were the employee to post, My boss is crazy and needs to
turn on the heat when it is freezing in the warehouse, the griping coalesces
with expression that is intended to produce concerted action, making the
entire statement protected under 7.187
III. Crossing the Line of Concerted Activity More Quickly and the
Necessity of Timely Employer Response
A. Social Networking Is a Unique Forum: Crossing the Line of
Concerted Activity More Quickly
The risks that social networking poses to employers are due to the
lasting public nature of the comments, and the line of concerted activity
is surpassed far sooner than in other domains.188 Unlike other forms of
communication, such as the bulletin board in an employees break room,
the Internet is pervasive, unregulated, and a powerful molder of
opinion.189 One judge elaborated on the unique effect of posting on an
Internet site:
The Internet profile is the modern equivalent of standing on a
street corner . . . with a sign . . . . This may not be a busy corner
we should hope that it is notbut it is a public corner
nonetheless. Indeed, where the Internet is concerned, the impact
of the metaphorical back alley protest may be magnified in time
and distance in a manner distinct from that taking place in an
actual back road or alley. Persons from all over the world may
see it, and at a time when the street protester . . . has long ago put
the placard away, the . . . message on the Internet lingers.190
Not only are the postings by employees on social-networking sites

public and lasting, but they are also not aimed specifically at their
185
Media Gen. Operations, Inc. v. NLRB, 394 F.3d 207, 211 (4th Cir. 2005).
Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1348 (3d Cir. 1969); Mushroom Transp.
Co., 330 F.2d at 685.
186
187
Hugh H. Wilson Corp., 414 F.2d at 1348.

See United States v. Wilcox, 66 M.J. 442, 462 (C.A.A.F. 2008) (Baker, J., dissenting).
Unlike the comments made over the traditional water cooler, the new water cooler of socialnetworking sites provides access to disparaging comments to a broader range of
individualsbringing the issues into the workplace. Nancy H. Woodward, Free Speech Versus
Harassment: The Elephant in the Room, HR WIRE, Oct. 7, 2009, available at Westlaw, 10/07/2009
HR-Wire.
188
189
190
Wilcox, 66 M.J. at 462 (Baker, J., dissenting).

Id.
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179
employer.191 Rather, the postings are aimed at the public at largeany

individual to whom an employees account is accessible may view the
disparaging comments.192 This large viewing audience, in connection
with the geometric growth of social-networking sites, creates the prime
opportunity for an employee to behave in a manner that far exceeds
concerted activity and that discloses confidential information.193
Concerted activity and water cooler discussions traditionally occurred
in the confines of the place of employment or during an intimate
conversation*e+mployees used to complain about their trials and
tribulations at work to their spouse, over coffee with a friend or to a
friendly bartender. For the most part these comments and complaints were
unknown to the employer, coworkers and customers.194 But today, the
Internet brings the disagreement and employee discontent outside of the
workplace, often causing intentional (or unintentional) damage to the
employers reputation and bottom line.195
B. The Necessity of Timely Employer Response in the Internet Era
Staying abreast of the information that employees are posting on
social-networking sites is essential for employers; companies that fail to
monitor such activity may not address false or defamatory statements
made by a disgruntled employee, and the damage that the postings cause
may be beyond repair.196 Immediate employer response to employees
postings and monitoring of employees activity is well-founded given the
increased use of social-networking sites.197 In 2009, terminations for
violations of company policy on social networks doubled, indicating that
employers are increasingly concerned about and faced with the challenges
of the new media.198 That same year, seventy-four percent of employees
indicated that they believed it would be easy to damage a companys
reputation through social networking.199
191
Cf. id. at 454.

Cf. id.
193 See Curley & Morway, supra note 28, at 120.
194 Ann Scheer, Employer Rights and Responsibilities for Employee Facebook, MySpace, Twitter,
Blogs, and Other Social Networking Postings, DATELINE: NH, Mar. 2010, at 10, 10, available at
http://www.devinemillimet.com/uploads/docs/dateline-annescheer.pdf.
192
195
See Curley & Morway, supra note 28, at 125.

Id. at 124; see Melanie Harris & Eileen Moore, LinkedIn and Lost? Employees Social
Networking Can Impact an Employers Goodwill, Trade Secrets, and Other Proprietary Interests,
PRIVACY & DATA SECURITY L.J., Sept. 2009, at 715, 716.
198 See id. at 119.
199 Lisa I. Fried-Grodin, Dos and Donts of Monitoring the Activities of Employees on Social
Networking Sites, N.J. L.J., Dec. 6, 2010, at S-5, S-10, available at http://www.jdsupra.com/
196
180
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Once an employer becomes aware of an employees posting on a

social-networking site, certain rights and duties are implicated.200 If an atwill employee has posted a disparaging comment about the employer
My boss is crazythe employer has a legal right to discharge the
individual if he chooses to do so, particularly if the publication of the
sentiment may have a damaging effect on the business interests of the
employer.201 In addition to preserving business interests, the employers
interest in maintaining discipline is also implicated.202 An employer does
not have to wait for employee discontent and disparaging comments to
amass on a social-networking site,203 but rather it may institute an effective,
rapid response in an effort to ameliorate any damage to its public image
and bottom line.204 The right to respond to employee misconduct is not
without limit, and the employer would not be permitted to terminate the
employee who was posting disparaging comments if those comments
legitimately constituted concerted activity.205 If the employee had posted,
My boss is crazy and needs to turn on the heat when it is freezing in the
warehouse, then the employer would have a duty to respond in a remedial
manner to the employees concern and provide an avenue to confer with
the employee or an authorized representative thereof.206
IV. Proposed Remedies
A. Comprehensive Social-Networking Policies
An employers need to manage and understand social networking is
essential to minimize the threats that this media poses to the employer, 207
and nearly 75% of companies worldwide are placing themselves at risk by
failing to adopt a formal policy for employee use of social networks.208 One
manner in which an employer can manage the risks of social networking
by employees is to establish a clear and concise communication policy,
which can be an effective tool in shaping the reasonable expectations of
post/documentViewer.aspx?fid=2852998c-63e8-447f-96ba-94c1c37db64e.
200 See discussion supra Part I.C.
201 See discussion supra Part I.C.1.
202 See supra notes 104-07 and accompanying text.
203 See Caterpillar Tractor Co. v. NLRB, 230 F.2d 357, 359 (7th Cir. 1956).
204 Curley & Morway, supra note 28, at 126.
205 See supra notes 108-09 and accompanying text.
206 See discussion supra Part I.C.2.
208 See Few Companies Have Policy for Employee Use of Social Networks, EMARKETER (Feb. 3,
2010), http://www.emarketer.com/Article.aspx?R=1007493.
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181
their employees.209 A well-drafted company policy will help minimize

the potential for conflict over workplace privacy. A well-drafted policy
coupled with a climate of respect for employees is even more powerful. All
companies function better when relations between employers and
employees are positive.210 Through policies, employers can establish
unambiguous limits, enforce the clearly-defined rules uniformly, decide
what activity is permissible, address the employees expectations of
privacy, monitor and review office-supplied technological devices, and
require employees to sign acknowledgement forms.211 A general
communication policy form can specifically address social-networking
policies by focusing on the needs of the employer, the rights and
expectations of the employees, and the activities of blocking or monitoring
that the company intends to undertake.212 Establishing that employees
Internet usage is subject to search lowers the employees expectation of
privacy.213
A clear communication policy will provide the employer with greater
leverage and increased protection from NLRB charges, as it has long been
recognized that refusal to obey instructions constitute*s+ reasonable
grounds for disciplining an employee, and discharge for insubordination
or refusal to obey instructions is perfectly lawful.214 Moreover, the policy
agreement gains increased force when it is the product of bargaining
between employer and employee. If an employee acts in direct
contravention of an employment agreement, otherwise concerted activity
need not be tolerated by the employer.215 Rules for the orderly
presentation of grievances can also be established, the willful violation of
which would justify discharge for cause. 216 Of course, there are limits on
the policies that employers may institute. A social-networking policy
209
City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010).

HUBBARTT, supra note 18, at 9.
211 KAPLAN ET AL., supra note 16, at 240. The general communication policy should inform
employees that their rights to privacy will be protected unless they undertake actions that
have the potential of adversely affecting the company. Such adverse action will trigger the
company to undertake the procedures outlined in its communication policy. See id.
210
212
Id. at 239.
Lesser, supra note 120, at 150 (citing Warshak v. United States, 490 F.3d 455 (6th Cir.
2007), vacated, Oct. 9, 2007); Mark A. Pihart, Navigating the Information Superhighway:
Understanding the Impact of Social Media in the Workplace 3 (Sept. 14, 2010), available at
http://www.jdsupra.com/post/documentViewer.aspx?fid=0c9d30f1-4f22-46c9-bf005b87b5568e26.
214 Media Gen. Operations, Inc. v. NLRB, 394 F.3d 207, 212 (4th Cir. 2005) (quoting NLRB
v. Consol. Diesel Electric Co., 469 F.2d 1016, 1025 (4th Cir. 1972)).
213
215
216
See Hagopian & Sons, Inc. v. NLRB, 395 F.2d 947, 953 (6th Cir. 1968).
Id.
182
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cannot chill 7 protected activity.217 An employer directive to employees

to never discuss work-related grievances has been held to be unduly
broad.218 The employer cannot infringe upon the valid privacy interests of
employees, such as through creation of a false user identification or by
hacking into an employees otherwise private content.219
B. Amendment to the NLRA
The NLRA has remained relatively untouched since its passage in
1935.220 The law in force today consists primarily of the Wagner Act, with
changes being made in 1947 by the Taft-Hartley amendments and in 1959
by the Landrum-Griffin Act.221 As one scholar questioned, Why has labor
law stood still in the face of decades of social, economic, and legal
change?222 The reality is that the NLRA has remained stagnant for over
half a century, a period that has seen the rapid development of personal
technologies such as computers and cell phones. 223 This ossification of
labor law is due to a powerful minority in Congress that has persistently
blocked reform attempts, as well as the polarizing nature of pitting the
interests of employers against those of employees.224 Only a serious crisis
in industrial relations seems capable of breaking through the resulting
impasse.225 Potentially, the significant advances in technology and the use
of social-networking sites can be the impetus for NLRA reforms.
The potential for successful amendments to labor law that reflect the
changed technological environment may be witnessed in similar alterations
in other areas of law, including the realm of copyright. 226 In 1998, Congress
enacted the Digital Millennium Copyright Act (DMCA) as a response to
the continuing development of information technology. 227 In particular, the
DMCA recognized that the development of the Internet required a
217 Memorandum from the Office of the Gen. Counsel, Natl Labor Relations Bd., to
Marlin O. Osthus, Regl Dir., Region 18, at 6-7 (Dec. 4, 2009), available at
http://www.nlrb.gov/case/18-CA-019081.
218 Phoenix Transit Sys. v. NLRB, Nos. 02-1165, 02-1210, 2003 WL 21186045, at *525 (D.C.
Cir. May 14, 2003).
219
Gina L. Genova, No Place to Play: Current Employee Privacy Rights in Social Networking
Sites, BUS. COMM. Q., Mar. 2009, at 98.
220 Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L. REV. 1527,
1532-33 (2002).
221
222
223
224
225
226
227
Id. at 1532.
Id. at 1540.
Id. at 1532-33.
See generally id. at 1540-43.
Id. at 1543.
See CRAIG JOYCE ET AL., COPYRIGHT LAW 26-27 (8th ed. 2010).
Id. at 26.
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183
response from the legal system. 228 One primary purpose of the passage of
the DMCA was to protect the interests of those who use the Internet but
are also keen to maintain important safeguards. 229 It is this primary
purpose in which copyright law intersects with labor law. Amendments to
the NLRA in the technological era will necessarily center on protecting the
interests of the playersemployers and employeeswhile maintaining
essential safeguards that have traditionally been recognized in the
employment relationship.230
CONCLUSION
Social-networking websites and developments in communication
technologies bring a new dynamic to the employer-employee
relationship.231 Although the NLRB has yet to conclusively decide whether
an employees disparaging rants on a social-networking site constitute
concerted activity protected under the NLRA, its decision to file a formal
charge against American Medical Response of Connecticut, Inc. indicates
that the Board will likely find that such postings fall within the scope of the
Act.232 This Note contends that such classification is in error; an employees
use of a social-networking site to post disparaging remarks about his
employer is not concerted activity and will not be protected under 7 of
the NLRA. First, under the test promulgated in Leslie Metal Arts Co., an
individual employees postings conceivably fail all four elements: often
there is no work-related complaint, the activity fails to promote a group
interest, a remedy is not sought, and the activity is otherwise improper.233
Even if the Board were to assume that the individuals postings on a socialnetworking site could be afforded 7 protection, the postings would fail to
warrant it because the rants lack substantive content and purpose and
merely amount to griping and complaining.234 Moreover, the unique public
forum of social-networking sites creates new hazards for employers and
forces businesses to act timely in their response to employee misconduct.235
228
Id. at 47.
See id.
230 See supra Part I.
231 See discussion supra Part I.D.
232 See supra text accompanying note 7.
233 See NLRB v. Leslie Metal Arts Co., 509 F.2d 811, 813 (6th Cir. 1975) (citing Shelley &
Anderson Furniture Mfg. Co. v. NLRB, 497 F.2d 1200, 1202-03 (9th Cir. 1974)); discussion supra
Part II.A.
229
234
235
See discussion supra Part II.B.

See discussion supra Part III.B
184
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Congress and the NLRB must take affirmative steps to provide clear
guidance to employers and employees.236 While the institution of clear
communication policies by employers is an important requirement in the
twenty-first century, such policies are not 100% precise in establishing the
rights and duties of both employees and employers.237 In addition, the
NLRA must be amended to clearly establish what individual employee
actions constitute concerted activity in the technological era. 238 Should
the legislature fail to pursue and institute the changes necessitated by
technological developments, the NLRA will no longer serve the purposes
intended by Congress. Instead, it will permit continued infringement upon
employers rights by endorsing individual employee rants that
contemplate no future interest or group action.239
236
237
238
239
See discussion supra Part IV.

See discussion supra Part IV.A.
See discussion supra Part IV.B.
See discussion supra Part II.A.

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All A-Twitter: The Buzz Surrounding

The effect of social networking on employment has taken center stage

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New England Law Review

1 17 is the employers code referring to a psychiatric patient. Sam Hananel, Woman

Hananel, supra note 1.

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Social-Network Rants and the Employment Relationship

This first-of-its-kind legal case highlights the changing nature of

Hananel, supra note 1.

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The NLRB is pursuing cases against employers who discharge

See News Release, supra note 5; Hananel, supra note 1.

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Social-Network Rants and the Employment Relationship

response in reaction to inappropriate uses of social-networking sites by

Traditional Rights of Employers and Employees and the

National Labor Relations Act 3, 29 U.S.C. 153(a) (2006).

31 What We Do, NATL LAB. REL. BOARD, http://www.nlrb.gov/what-we-do (last visited

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Section 7 establishes the employee actions that are protected from

National Labor Relations Act 7, 29 U.S.C. 157 (2006).

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Social-Network Rants and the Employment Relationship

be granted such protections.41

Concerted Activity: Employee Conduct that Is

The phrase concerted activities is an integral part of the protections

we-protect (last visited Oct. 17, 2011).

National Labor Relations Act 7.

43 Employee Rights, NATL LAB. REL. BOARD, http://www.nlrb.gov/rights-we-protect/

330 F.2d 683 (3d Cir. 1964).

509 F.2d 811 (6th Cir. 1975).

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mutual interests of employees that do not bear a reasonably significant

concerning conditions of employment . . . .).

See Leslie Metal Arts Co., 509 F.2d at 813.

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Social-Network Rants and the Employment Relationship

individual employee may act on behalf of authority granted by

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even if it otherwise would be a concerted activity, is improper and may

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Social-Network Rants and the Employment Relationship

Unprotected Employee Conduct Under 7

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Mobil Exploration & Producing, 200 F.3d at 238.

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griping and complaining is not a protected activity. 84 Moreover, even if

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Social-Network Rants and the Employment Relationship

employer.95 In addition to being feebly restricted, employers have

Employer Rights Under 8 of the NLRA

The Act does not attempt to interfere with an employers right to

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motive for discharge is a factual determination to be made by the Board

Caterpillar Tractor Co., 230 F.2d at 358.

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