A Facebook Exchange that Offends Even the NLRB

Paula Lopez, November 14, 2014.

The National Labor Relations Board (NLRB) has a reputation of issuing decisions that afford employees the right to engage in unfettered social media activities and place employers in a precarious position for routine disciplining of workers for violations of company policy on social media.  However, the NLRB’s recent ruling in favor of an employer upholding its rescission of an offer to hire back two employees based on a Facebook conversation encouraging insubordination and misconduct establishes that there are limits to what employees can post on social media sites even when they are engaging in concerted activity.

The case Richmond District Neighborhood Center and Ian Callaghan involves an employer who operates a teen center in San Francisco providing after school activities to students.   In May 2012, an end of the school year employee meeting was held during which management asked employees to list the pros and cons of working at the teen center.  After the meeting, several employees noticed that management had reacted negatively to their comments. Ian Callaghan, an activity leader and Kenya Moore, a program leader, requested a follow-up meeting but their requests were ignored.

It is customary in the summer for Richmond to send employees it wants to rehire for the upcoming school year rehire letters. In July 2012, Richmond sent Callaghan and Moore rehire letters.  Moore’s rehire letter reflected a demotion from program leader to activity leader based on a negative performance rating she received from her summer supervisor.  In August 2012, prior to starting work at the teen center, Callaghan and Moore exchanged messages on Facebook that discussed their plans for working at the teen center as well as lengthy statements describing planned insubordination.  Some examples of the posts include:

Callaghan: “I’ll be back but only if you and I are going to be ordering shit, 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?”

Callaghan: “…Let them do numbers, and we’ll take advantage, play loud music, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food.  Let’s do some cool shit and let them figure out the money.  No more Sean.  Let’s fuck 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 appreciated sO we just gobe have fuN dOin activites and the best part is WE CAN LEAVE NOW hahaha I AINT NEVER BE THERE even thO shawn gone its still hella stuck up ppl there that dont appreciate nothing.”

Callaghan: “You right. They dont appreciate shit. Thats why this year all I wanna do is shit 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…”

Moore: “…dont ask me nothing abOut the teen CenTer HAHA we gone have hella clubs and take the kids ;)”

Screen shots of Callaghan’s and Moore’s Facebook discussion was shown by another teen center employee to management.  After learning about the posts Richmond rescinded their rehire letters.  Callaghan filed an unfair labor practice charge against Richmond with the NLRB claiming that the Facebook discussion was protected concerted activity.

An administrative hearing was held during which the administrative law judge considered whether the posts were “protected concerted activity” and whether the teen center’s decision to rescind the rehire letters violated the National Labor Relations Act (NLRA).  In pursuing the charge, general counsel’s office for the NLRB argued that the posts were an extension of the comments made by the employees’ during the May 2012 meeting.  While the ALJ agreed that the May 2012 comments made by Moore and Callaghan during the meeting and the work place complaints included in the Facebook discussion constituted concerted activities, the discussion was not protected under the NLRA because of the egregious nature of the comments in promoting insubordination and violations of established rules and policies. In reaching this decision, the ALJ focused on the harmful nature of the comments in expressing the employees’ intended refusal “to obtain permission as required by the Respondent’s policies before organizing youth activities”, a disregard of “specific school-district rules” about loud music and graffiti on walls, as well as their intent to undermine leadership and neglect their duties.  In light of the detail and magnitude of the insubordination discussed in the comments, the ALJ found that Richmond’s decision to rescind Callaghan and Moore’s rehire offers was reasonable because an employer is “not obliged to wait for employees to follow through on the misconduct they advocated” before taking action.

Section 7 of the NLRA protects both union and non-union employees from unlawful employment actions when they are engaging in activity and communications related to the terms and conditions of their employment.  In affirming the ALJ’s decision in Richmond, the NLRB made it clear that employees’ expansive rights to engage in concerted activity through social media have limits.  Comments indicating an intent to engage in insubordination and encouraging violation of policies, even when they are made amidst complaints about working conditions, will not be protected as concerted activity under Section 7 of the NLRA.  Further, the Richmond decision illustrates that employers are not powerless when it comes to protecting their business against employee threats of insubordination and misconduct, even when they are made through social media.