Board finally decides Triple Play;
A Like IS Protected Concerted Activity
But Context of a “Like” Should Matter
Triple Play Sports Bar & Grille is a non-union Connecticut restaurant whose wait staff discovered that, because of a snafu in the payroll system, they would have to pay additional taxes on their tip income. On the eve of a meeting management called to explain the situation and talk it over with employees, a former server began an online conversation about the topic on Facebook. She ranted about her realization that she would have to pay taxes, and referred to one of the restaurant’s managers as an “asshole.” Several current employees and a customer participated in the conversation.
The former server then accused management of making payroll calculation mistakes and posted her intention to report the mistake to the state “labor board.” A current employee, Spinella, selected the “like” option on this status update. The former server kept going, accusing one of the owners of being “shady”; she suggested he stole the tax money. Another employee posted the message “I owe too. Such an asshole.”
Word got back to management about this exchange. The owners questioned Spinella and advised him about his “like”. They told him it was apparent he wanted to work somewhere else because he had “liked the disparaging and defamatory comments” and terminated his employment.
The Board found that the arguably disloyal or disparaging comments made by the current employees did not lose §7 protection. No products or services were disparaged, only an ongoing “labor dispute”. The exchange was not directed to the general public even though a customer participated. The Board also noted that the discussion transpired not on a corporate Facebook page but on a personal one. Regardless of privacy settings, the discussion was not public; unless product or service disparagement is directed at the public at large, the employee(s) retain §7 protection.
As to Spinella’s “like”, it was not directed to the other status updates. The Board emphasized the factual setting of Spinella’s “like”, hinting that there could be situations (none of which were hypothesized) where such conduct could fall outside of §7 territory.
Triple Play Sports Bar & Grille http://nlrb.gov/case/34-CA-012915