In prior articles, we have discussed various decisions by the National Labor Relations Board ("NLRB" or the "Board") protecting employee social media activity as concerted activity under Section 7 the National Labor Relations Act (the "Act"). Although those decisions appear to suggest that employees generally have no limits as to what they can say on social media, a recent decision by the Board provides employers with the right to terminate employees whose comments indicate an intention to engage in insubordination. Richmond District Neighborhood Center, 361 NLRB No. 74 (Oct. 28, 2014).
In Richmond, the employer operated a teen center at a public school in San Francisco that provided afterschool activities to students. On August 2, 2012, two of the center's employees engaged in a profanity-filled exchange on Facebook expressing dissatisfaction with management's lack of response to employee feedback given at the end of the 2011-2012 school year, and with the demotion of one of the employees for the 2012-2013 school year. In that exchange, one of the employees said, among other things, that he would have "crazy events" at the teen center without asking permission, play loud music, get artists to teach the children how to draw graffiti on the center's walls, have parties and field trips all year, and do some "cool sh*t" and "let [the employer] figure it out." The other employee similarly stated that "when they start loosn kids I aint helpin," that she would not be present when the children were there, and that she would have "clubs" and "take the kids." Upon becoming aware of the Facebook exchange, the employer rescinded re-hire letters to the two employees for the 2012-2013 school year because the exchange demonstrated that the two employees would not follow the directions of their supervisor and could endanger the youth at the center. One of the employees filed an unfair labor practice charge with the NLRB. The Board's Regional Director in San Francisco subsequently issued a complaint against the employer; however, an administrative law judge ("ALJ") dismissed the complaint after an evidentiary hearing.
Affirming the ALJ's dismissal of the complaint, the Board found that the numerous statements in the exchange showed that the employees would not seek permission before planning activities (as required by the employer's policies), would disregard school-district rules, would undermine leadership, would neglect their duties, and would jeopardize the future of the center. Such comments, in the Board's estimation, amounted to "pervasive advocacy of insubordination" and, thus, "constituted conduct objectively so egregious so as to lose the Act's protection and render [the two employees] unfit for service." The Board rejected the General Counsel's argument that the circumstances surrounding the exchange, and the absence of any history of insubordination by the two employees, suggested that the threats of insubordination were not serious. Instead, the Board found that the employees' "lengthy" exchange "repeatedly described a wide variety of planned insubordination in specific detail." As such, the employees' posts reasonably gave the employer concern that the employees would act on their comments, "a risk that a reasonable employer would refuse to take."
Richmond should not be seen as some sort of stunning reversal in philosophy by the Board. Employees still have wide latitude in discussing their workplace in posts on Facebook, Twitter and elsewhere. The Board's decision, however, shows that there are some limits to what they lawfully can say. Bottom line: Employers confronted with questionable Facebook posts need to review those posts very carefully with their counsel before taking any adverse action based upon them.
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