The National Labor Relations Board (NLRB) finally found a Facebook conversation it couldn’t bring itself to “Like.” In Richmond District Neighborhood Center, Case 20-CA-091748 (October 28, 2014), the NLRB held that a Facebook conversation between two employees was so egregious that it was not entitled to the protection of concerted activity afforded under the National Labor Relations Act (NLRA).

Under Section 7 of the NLRA, employees may engage in joint (or “concerted”) activity to raise their complaints and attempt to obtain a remedy. In recent years, the Board and its General Counsel have applied those principles to protect Facebook-related conduct, including “liking” the comments of a former employee who posted that the supervisor is “such an a__hole” (Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014)) and publicly criticizing coworkers in violation of the company’s anti-harassment and anti-bullying policies (Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (December 14, 2012)). But in Richmond District, the NLRB found that the employee’s Facebook discussion had just gone too far to deserve the NLRA’s protection.

The supervisor of a teen center that provides after-school activities for students at a San Francisco high school asked employees to participate in a year-end meeting by writing down the “pros” and “cons” of working at the center. Two employees thought that supervisors reacted negatively to the comments, the majority of which were cons. That night, the two employees took to Facebook not only to complain about their supervisors, but to plan what the Board characterized as “insubordinate acts.” One of the employees suggested throwing parties for the kids without regard to the financial ramifications:

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____ and making it all happy-friendly-middle school campy. Let’s do some cool sh__, and let them figure out the money. No more [former supervisor]. Let’s f___ it up. . . .

. . .

Thats why this year all I wanna do is sh__ on my own. have parties all year and not get the office people involved. just do it and pretend they are not there. . . . well make the beacon pop this year with no ones help.

. . .

F___ em. field trips all the time to wherever the f___ we want!

Another post suggested a complete lack of concern for the welfare of the children: “let them figure it out and when they start loosn [sic] kids i aint helpn HAHA.” Understandably, the employer rescinded the employees’ rehire offers, terminating their employment.

The NLRB found that the employees’ comments were concerted activities; they complained about working conditions, lack of appreciation from supervisors, the failure to respond to employee concerns, and the demotion of one of the two employees involved in the Facebook exchange. All of those topics are ordinarily entitled to the NLRA’s protection. The Board found that the overwhelming thrust of the conversation encouraged insubordination so severe that it could not be protected by the NLRA.

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.

Key Takeaways

This case suggests that there are some employee activities beyond the pale of acceptable conduct and that employers may still expect employees to comply with reasonable operating rules. But it takes an extreme level of serious verbal misconduct to justify the discharge of an employee based on social media expressions. Employers should consider all online discussions of working conditions involving multiple employees as presumptively protected by the NLRA. Discipline for such conduct should be reserved for situations where employee communications advocate egregious conduct such as violence, sabotage, or insubordination.


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Traditional Labor Relations

The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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