WASHINGTON – Tired of the taunts from a critical colleague, Mariana Cole-Rivera, an employee at Hispanics United of Buffalo, took to the 21st century method of complaint.
“Lydia Cruz, a coworker, feels that we don’t help our clients enough at HUB,” she wrote on Facebook on Saturday, Oct. 9, 2010. “I about had it! My fellow coworkers how do u feel?”
Little did she know it at the time, but with those words, Cole-Rivera wrote the first phrases of a morality tale that’s still playing out amid two of the uncomfortable realities of modern life: social media and political partisanship.
Fired after her boss saw their Facebook conversation about working conditions at the small Buffalo nonprofit, Cole-Rivera and four of her former colleagues filed a complaint with the National Labor Relations Board to try to regain their jobs and back pay. And last December, they won.
What’s more, they won the first-ever federal edict on how far workers can go when discussing their work on social media.
Facebook is similar to the water cooler.
“Employees have a protected right to discuss matters affecting their employment amongst themselves,” the NLRB ruled.
But now that ruling is in question, all because President Obama – unable to get his nominees to that labor board past Republicans in the Senate – appointed them via an end-around that a federal appeals court just ruled unconstitutional.
In other words, it’s suddenly unclear what the Hispanics United case will turn out to be.
It could be a labor-law free-speech landmark that gives employees the freedom to discuss work on Facebook and Twitter. Or it could be yet another casualty of the never-ending war between Democrats and Republicans.
A Facebook chat
Whatever the Hispanics United case turns out to be, it started as the kind of Facebook conversation that happens every day all over the world.
Seeing Cole-Rivera’s question, her colleague Damicela Rodriguez replied: “What the [expletive]. Try doing my job I have 5 programs.”
Then Ludimar Rodriguez chimed in, saying: “What the Hell, we don’t have a life as is, What else can we do???”
To which Yaritza Campos wrote: “Tell her to come do mt [my] ...job n c if I don’t do enough, this is just dum.”
And after Carlos Ortiz de Jesus posted a sarcastic description of his work with Hispanics United’s clients, Cruz took to Facebook to make clear that she was not amused.
“Marianna stop with ur lies about me,” Cruz posted in the Facebook conversation, which was spelled out in NLRB records.
And that was just the start of it.
Cruz complained to Lourdes Iglesias, the executive director of Hispanics United, saying the stress of seeing that online conversation was so traumatizing that she was hospitalized with what she thought was a heart attack.
Iglesias, who is on medical leave now, could not be reached for comment. But according to NLRB records of the case, the following Tuesday she told the five employees that they had violated Hispanics United’s anti-harassment policy and had bullied Cruz – and therefore, they were being fired.
Cole-Rivera and her fired colleagues were shocked to hear it.
“I never said anything about her [Cruz] personally or even professionally,” Cole-Rivera said. “That was not the intent.”
She explained that she was merely seeking feedback from colleagues.
But Cruz offered an entirely different take on things. She had complained to Cole-Rivera because she and other Hispanics United employees were “talking in the office, doing nothing” when they should have been helping clients.
What’s more, Cruz said she was crushed when she saw the Facebook conversation.
“I freaked out,” she said. “My heart started pounding and I started to cry. It was like I had a nervous breakdown and had to be rushed to the hospital.”
Plenty of sympathy
Shortly thereafter, Cole-Rivera and her fired former colleagues rushed to the NLRB, which is charged with resolving disputes in both unionized and non-unionized workplaces.
There, they found plenty of sympathy. An administrative law judge ruled in their favor in September 2011, and the NLRB affirmed that decision last Dec. 14.
Both the judge and the labor board cited the National Labor Relations Act’s provision guaranteeing workers the right to “engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
That protection dates back to 1935, so in a way, the Hispanics United decision is nothing new, said Nancy Cleeland, director of public affairs at the NLRB.
“It’s applying the old, established protection of the right of workers to act together and applying it to a new form of communication,” Cleeland said.
Yet in doing that, the Hispanics United case may well be seen someday as a legal landmark.
“I think it’s potentially pretty important,” said Matthew D. Dimick, a law professor at the University at Buffalo. “It’s the board’s first case sort of drawing the line in the sand about what employees can do and what employees can say in social media.”
Still, it’s not the be-all and end-all case on the matter.
Only three months earlier, the board ordered an Illinois BMW dealership to rewrite its employee handbook, which barred workers from any comments that could harm the dealership’s image.
But it let stand the dealership’s decision to fire a worker who took to Facebook to make fun of a company sales event, as well as to post pictures of an accident at a Land Rover dealership under the same ownership.
That decision, along with recent NLRB memos on the matter, serves as a warning to workers everywhere that you can’t just say anything about your employer on Facebook and expect the law to protect you.
“You can’t publicly disparage your employer, whether on Facebook or in a news story,” without potentially paying a price for it, said Rhonda Ley, regional director of the NLRB in Buffalo.
Then again, that Illinois decision, as well as the Hispanics United case, are now in something of a legal limbo.
That’s because of a Jan. 25 decision from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. The court ruled that three appointments Obama made to the NLRB in early 2012 were “constitutionally invalid.”
Unable to get Senate Republicans to allow a vote on their confirmations, Obama appointed the three NLRB members when Congress was out of town, thinking the Constitution’s provision allowing him to make “recess” appointments would permit him to do that.
But the D.C. court ruled that the Senate, although out of town, had not officially adjourned, thereby making his recess appointments invalid.
The ruling conflicts with decisions of other federal appeals courts, which means it’s likely destined for a higher authority, said James A. Gardner, a constitutional law expert at UB.
“The opinion is so far-reaching that I think it’s going to be taken up by the Supreme Court,” Gardner said.
In the meantime, the NLRB is regarding that case – Canning v. NLRB – as a one-off, with no impact on other cases, Cleeland said.
Other lawyers aren’t so sure. Some argue that if the NLRB members who ruled last year in more than 200 cases – Hispanics United included – were in fact appointed unconstitutionally, their rulings are null and void.
“It becomes an issue for us to raise on appeal,” said Rafael O. Gomez, the Buffalo lawyer who is defending Hispanics United.
Neither of the women who started the online spat at Hispanics United were aware that the fate of their NLRB case may well rest with the U.S. Supreme Court.
And while Cole-Rivera and Cruz offered entirely different takes on that trouble-causing social media conversation, they do agree that they’ve learned the some hard lessons about Facebook.
“Am I more careful now? Yes,” Cole-Rivera said. “Do I post things about work? No.”
As for Cruz, she said: “I love Facebook. It is my therapy: I vent and people respond. It is not for the use of ‘cyberbullying’ ... especially when it affects the person being talked about.”