Finally: An NLRB Decision Employers Will Like!

On October 28, 2014, the National Labor Relations Board (NLRB) held an employer lawfully rescinded its offers to rehire two workers for Facebook postings advocating insubordination. The National Labor Relations Act (NLRA), which applies to both unionized and non-unionized employers, gives employees the right to engage in protected, concerted activity and to discuss the terms and conditions of their employment. However, in Richmond District Neighborhood Center, Case No. 20-CA-091749 (October 28, 2014), the NLRB held the Facebook postings were so egregious that they lost the NLRA's protection. 

Richmond District Neighborhood Center runs after-school programs at a high school. Two workers had a Facebook discussion where they advocated specific insubordinate acts such as refusing to obtain permission before organizing youth activities, disregarding specific school district rules, undermining leadership, neglecting job duties and jeopardizing the future of the program. 

The Facebook postings stated:

MOORE: U gOin baCk or nO??

CALLAGHAN: I'll be back, but only if you and I are going to be ordering s--t, having crazy events at the Beacon all the time. I don't want to ask permission, I just want it to be LIVE. You down?

MOORE: Im gOin to be a activity leader im not doin the t.c4 let them figure it out and when they start loosn kids i aint helpn HAHA.

CALLAGHAN: hahaha. Sweet, now you gonna be one of us. Let them do the numbers, and we'll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food. I don't feel like bein their b--ch and making it all happy-friendly-middle school campy. Let's do some cool s--t, and let them figure out the money. No more Sean.5 Let's f--k it up. I would hate to be the person takin your old job.

MOORE: Im glad im done with that its to much and never appriciated sO we just gobe have fuN dOin activities and the best part is WE CAN LEAVE NOW hahaha I AINT GOBE NEVER BE THERE even thO shawn gone its still h--la stuCk up ppl there that don't appriciate nothing.

CALLAGHAN: You right. They dont appreciate s--t. Thats why this year all I wanna do is s--t on my own. have parties all year and not get the office people involved. just do it and pretend they are not there. i'm glad you arent doing that job. let some office junkie enter data into a computer. well make the beacon pop this year with no ones help.

MOORE: They gone be mad cuZ on wednesday im goin there aNd tell theM mY title is ACTIVITY LEADER dont ask me nothing abOut the teen cenTer HAHA we gone have h--la clubs and take the kids ;)

CALLAGHAN: hahaha! F--k em. field trips all the time to wherever the f--k we want!

MOORE: U f--kn right see u WednesdaY.

CALLAGHAN: I won't be there wednesday. I'm outta town. But I'll be back to raise h--l wit ya. Dont worry. Whatever happens I got your back too. FORMER STUDENT CHLOE.

GARABATO: WTF !!! As soon as I leave you guys want to h--la fun as s--t and I can be there !! H--LA MEAN !!!

MOORE: U can come why u cant.

GARABATO: Because I'll have school. And I'm trying to work during school too . If you can get me job working with you guys , I'm there for sure !!! Aha.

MOORE: You see what we gO thrU we there fOr the kids I dOnt knOw abOut everybOdy eLse.

CALLAGHAN: It's all for the kids. You gotta come in and visit. Everyone is invited.

The NLRB stated:

We find the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act's protection and render Callaghan and Moore unfit for further service … The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated. 

As we discussed in our August 29, 2014, legal update, the NLRB held Facebook "likes" can be protected, concerted activity. Also, as explained in our July 11, 2014, legal update, the NLRB held an employer improperly disciplined an employee who obscenely grabbed his crotch in front of a female coworker. Additionally, as discussed in a June 5, 2014, legal update, the NLRB held an employee engaged in protected, concerted activity when he shouted profanities at his boss. 

At long last, the Richmond decision shows there are limits on what constitutes protected, concerted activity, but it also serves as a reminder that, before taking any action against employees or applicants based on conduct on Facebook or other social media, employers should consider whether the NLRA protects the conduct.

If you have questions about this topic or other labor matters, please contact any of Faegre Baker Daniels' labor management relations lawyers.