New NLRB Advice Memo re: Facebook Posts

The National Labor Relations Board Office of the General Counsel recently released a new advice memorandum after considering whether an employee at H&M Construction engaged in protected concerted activity by posting comments on Facebook about how the company’s employees were treated by their general contractor. The General Counsel found that the employer violated Section 8(a)(1) of the National Labor Relations Act by laying off employee who made the social medial posts.

Georgia Pacific contracted out to H&M Construction the on-site landfill management services for a paper mill in Alabama. An H&M equipment operator at the landfill saw a sign announcing a Veterans Day function for Georgia Pacific’s veteran employees but not for veteran employees of its contractor. Georgia Pacific displayed on its Facebook page posts featuring and praising some of its veteran employees, including one about a worker at a nearby mill. The H&M employee commented on the post:

Yeah well I think it’s cheesy that at y’all’s mill in AL y’all are gonna have a little get together for the ‘mill hand’ veterans, but not the in house contractors that work at the mill everyday that are veterans. Yeah that’s pretty disgusting if you ask me.

A Georgia Pacific supervisor informed an H&M supervisor about the Facebook comments. Although the Georgia Pacific supervisor did not ask or instruct H&M to take any personnel action against the employee, the H&M supervisor determined it “would be unwise” for the employee to return to the mill and that the employee should be laid off. In essence, he was fired because of the Facebook post.

Section 7 of the National Labor Relations Act provides that employees have the right to engage in concerted activities for mutual aid or protection. According to the General Counsel, the “Facebook comments were concerted activity because they sought to bring employee complaints to management’s attention and to initiate or induce group action.” The General Counsel continued, “It is important to recognize that the Charging Party is not a veteran, and therefore his posts’ primary message advocated not on his own behalf, but on behalf of veterans working for Georgia Pacific’s contractors.”  This negates any inference that the charging party was expressing a purely personal gripe.

I wonder what the advice would have been had the griper been a veteran…

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at