After years of NLRB decisions protecting employees’ profanity-laced tirades and outright threats against management in social media stream-of-consciousness posts, the Board recently said “no.” In Richmond District Neighborhood Center, 361 NLRB No. 74 (2014), the NLRB upheld the ALJ’s decision that two employees’ Facebook plan for insubordination veered into the land of “unprotected” activity under the NLRA.
At the close of the school year, employees of a teen center anonymously submitted the pros and cons of working at the center. The cons included mistreatment by management, lack of appreciation, failure to act on employee suggestions, and lack of clarity on policies controlling employee expenditures.
Before returning to work the following school year, two employees exchanged Facebook posts in which they wrote that (rather than following the center’s policies) they would:
- “be ordering sh*t, having crazy events . . . all the time”
- “I don’t want to ask permission”
- “Let’s do some cool sh*t, and let them figure out the money”
- “field trips all the time to wherever the f*ck we want!”
- “play music loud”
- “teach the kids how to graffiti up the walls”
- “we’ll take advantage”
- “I would hate to be the person takin your old job”
- “I AINT GOBE NEVER THERE”
- “they start loosn kids I aint helpn”
- “Let’s f*ck it up”
The employees’ profanity and disparaging comments about management did not concern the Board. However, the “magnitude and detail” of the numerous insubordinate acts these employees planned met the Board’s definition of conduct that was so objectively egregious that it lost the Act’s protection and rendered both employees unfit for further service.
The Board easily dismissed the General Counsel’s claims that the posts were simply a continuation of the employees’ anonymous complaints about management from the prior school year and that no reasonable person could construe the posts to be proposed insubordination since neither employee had a history of insubordination.Instead, the Board found that the posts constituted a “lengthy exchange [that] repeatedly described a wide variety of planned insubordination in specific detail” and not merely jokes, hyperbole or brief comments.The “magnitude and detail of insubordinate acts advocated in the posts” created legitimate grounds for concern that the employees would act on their plan, presenting risks no reasonable employer was required to take.
The Board’s decision focused on what it believed was a plan by employees to engage in a disruptive pattern of insubordination on many levels – all of which could have jeopardized the center and the students whose care was entrusted to the center. Naturally, employers applaud this decision. But keep in mind that the Board explicitly relied on the fact that the Facebook exchange was a “lengthy” exchange that “repeatedly” described a “wide variety” of “planned” insubordinate acts in “specific detail.” When is the last time you had that kind of evidence of [planned] misconduct in social media posts? Employers would be wise to conclude that, absent similar facts, there likely will not be many similar decisions from this Board.