For those of you who have followed the social media decisions of the National Labor Relations Board (NLRB) over the past three or four years, you know that those decisions rarely find in favor of the employer. Repeatedly, the NLRB has found that employers’ negative reactions to employee posts on Facebook, Twitter and the like have violated the National Labor Relations Act (NLRA) protection that allows employees to engage in “protected, concerted activity.” The NLRB has made clear its view that employees who together on social media engage in discussions about their wages, hours and other terms and conditions of employment are participating in this type of NLRA-protected activity.
A new decision from a three-member panel of the NLRB has, for once, found in favor of an employer which reacted negatively to the Facebook postings of two of its employees. For employers, however, the case, Richmond District Neighborhood Center, is not as earth-shattering as it seems at first.
The Richmond District Neighborhood Center operates a teen center that provides after-school activities to high school students in the San Francisco area. Prior to each school year, the Center sends offer letters to former employees who it wants to rehire for the coming school year. For the 2012-13 school year, among the offer letters sent were offers to Ian Callaghan and Kenya Moore, both of whom had previously worked for the Center. The Center’s letter to Moore offered her a position that amounted to a demotion from her previous year’s work for the Center due to a negative performance rating that she had received from her supervisor for summer work that she had done for the Center.
Callaghan and Moore proceeded to have a long Facebook exchange (that at one point involved a student who attended the Center) about the ways in which they were going to conduct their work at the Center during the upcoming school year. As with most NLRB cases involving social media, the Facebook exchange contained a series of expletives and was discovered by another Center employee who informed the employer of the Facebook discussion. The entire Facebook exchange, including expletives, is reproduced in the NLRB’s decision.
It was not the expletives, however, that caught the employer’s attention. Rather, what did was the employees’ express intention to engage in insubordinate acts once they returned to work at the beginning of the school year. In their Facebook exchange, the two employees planned how they were going to refuse to obtain permission from the employer before organizing youth activities, disregard specific school rules (including noise limitations and zero-tolerance for graffiti), undermine Center leadership and neglect their duties. As a result of this Facebook exchange, the Center rescinded the job offers that had been made to Callaghan and Moore for the upcoming school year. An unfair labor practice charge was then filed with the NLRB regarding the withdrawal of the job offers.
Given this set of facts, the NLRB found that the Facebook exchange between the two employees lost the protection of the NLRA. The NLRB decision states:
“The magnitude and detail of insubordinate acts advocated in the [Facebook] posts reasonably gave the [Center] concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The [Center] was not obliged to wait for the employees to follow through on the misconduct they advocated.”
Though strong language and a rare favorable decision for an employer in a NLRB social media case, employers should not take this decision as a new direction for the NLRB in these types of cases. This is due to the fact that the NLRB expressly indicated that it was not considering the issue of whether the Facebook exchange was “protected, concerted” activity, but, rather, whether the exchange lost the protection of the NLRA. In other words, the issue that arises most frequently in NLRB social media cases — whether a given social media discussion constitutes protected, concerted activity under the NLRA — was assumed to already exist. Having made this assumption, the NLRB then took the next, less frequent step of finding that
“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 [NLRA’s] protection and render Callaghan and Moore unfit for further service.”
Though on its face, the NLRB’s decision in this case seems hopeful to employers and may be useful as precedent in some instances, it is not likely to have widespread applicability nor does it represent a real change in direction from the NLRB’s use of the concept of “protected, concerted activity” to attack employer decisions regarding employee use of social media. As a result, employers should continue to consult counsel before making employment decisions based upon employee social media posts, discussions and exchanges.