When employees take to Facebook with profanity-laced exchanges about their employer and job duties, odds are they will get fired. When the same employees go to the NLRB for protection under the NLRA, they cannot count on a receptive audience all the time. This much is demonstrated in an NLRB decision released last week.
In Richmond District Neighborhood Center, 361 N.L.R.B. No. 74 (Oct. 28, 2014), two activity leaders working at the Beacon Teen Center, an after-school program at a San Francisco High School, engaged in a profanity-laced Facebook exchange about work, detailing their intentions to refuse to obtain permission before organizing youth activities, disregard specific school-district rules, undermine leadership, and neglect their job duties. The employees made numerous comments that they would organize “field trips all the time to wherever the fuck we want,” “teach the kids how to graffiti up the walls,” “take advantage” of their new supervisor, and “fuck it up,” referring to the Teen Center.
After another employee sent screenshots of the conversation to management, the Center rescinded the employee’s rehire offers, explaining that the posted comments gave the Center great concern about the employees’ apparent intentions to disobey management directives and refuse to work with management, potentially endangering the Center’s youth participants. The employees filed a charge alleging their statements on Facebook were protected under the NLRA.
The NLRB analyzed the comments objectively. The question was whether the employees’ comments were so egregious as to take them outside the protection of the NLRA, or of such a character as to render the employees unfit for further service. The NLRB determined that the employees’ Facebook conversation was not protected because the statements clearly advocated insubordination through numerous detailed descriptions of specific insubordinate acts. The NLRB agreed that the magnitude and detail of insubordinate acts the employees advocated on Facebook reasonably gave the Center concern that the employees would act on their plans, and the Center was not required to wait for the employees to follow through on the planned misconduct before it took action.
While labor professionals still must be cautious when disciplining employees for social media posts that relate to employee issues regarding the terms and conditions of employment, the NLRB’s holding confirms that there remains a line which employees cannot cross without disciplinary consequences. Each situation, however, must be reviewed on a case-by-case basis and labor professionals would be well-advised to consult with qualified labor counsel when confronted with questions of protected, concerted conduct.