NLRB Draws the Line on Employer Social Media Bashing

The NLRB said enough is enough to two seasonal employees of a not-for-profit youth organization in San Francisco.  Last week, it upheld an administrative law judge’s dismissal of a complaint against the Richmond District Neighborhood Center when is failed to rehire two seasonal employees. The employees had previously met with their supervisor to share comments and criticisms about the organization. Later, two of the employees, Moore and Callaghan, exchanged critical comments about the Center on Facebook, including the following:

Moore: I’m goin’ to be a activity leader I’m not doing the t.c. let them figure it out and they start loosin' kids I ain’t help'n HAHA

Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like being their bitch and making it all happy-friendly middle school campy. Let’s do some cool sh*t, and let them figure out the money. No more Sean. Let’s f**k it up. I would hate to be the person taking your old job.

Moore: I’m glad I’m done with that its to much and never appreciated so we just go be have fun doing activities and the best part is WE CAN LEAVE NOW hahaha I AINT GON BE NEVER BE THERE even tho shawn gone its still hella stuck up ppl there that don’t appreciate nothing.

Callaghan: You right. They don’t appreciate sh*t. That’s why this year all I wanna do is sh*t on my own. Have parties all year and not get the office people involved. Just do it nd pretend thay are not there. I’m glad you aren’t doing that job. Let some office junkie enter data into a computer. Well make the beacon pop this year with no ones help.

Moore: They gone be mad cuz on Wednesday I’m goin’ there add tell them my title is ACTIVITY LEADER don’t ask me nothing about the teen center HAHA we gone have hella clubs and take the kids. 

Upon reviewing the Facebook exchange, the Center decided not to rehire these employees. The employees filed  a charge with the NLRB claiming that they were not rehired as a result of their protected activity in criticizing their employer. The ALJ found in favor of the employer and determined that the employees’ grossly insubordinate behavior was outside of the protection of the Act. The NLRB agreed with the ALJ   that the employees had engaged in concerted action, but that they had forfeited any legal protection under the NLRA when they made comments indicating that they intended to be uncooperative or insubordinate to their employer.

The NLRB agreed with the ALJ that it is well established that employees (whether unionized or not) have a right to engage in concerted activity for their mutual aid or protection, and employees  “may take action to spotlight their complaint and obtain a remedy.” When Callaghan and Moore joined with other employees to describe their complaints to a supervisor, they were engaged in protected concerted activity, the ALJ found. The NLRB agreed with the ALJ though, that notwithstanding the employee’s right to air their complaints, these employees went too far when their comments evidenced a plan to disrupt operations of the Center and to engage in insubordination. The Center was able to show that it would suffer if the employees were rehired because it would jeopardize grants and other funding of the organization. Ultimately, the NLRB agreed with the ALJ’s finding that the concerted activity was not protected.

This decision is instructive in two ways. For employers covered by the National Labor Relations Act, it draws that line in the sand for employees. They can be critical of their employer, but they can’t have protection if their comments reflect insubordinate activity, especially if such would jeopardize operations of the employer. Secondly, Illinois employers who are governed by the Illinois Labor Relations Act or Illinois Educational Labor Relations Act should take notice as well. As we have previously reported, these public sector Boards in Illinois have not  been in the forefront of decisions on social media and protected activity, but we do know that the public sector Labor Acts closely track the NLRA and the public sector Boards look to NLRB precedent in reaching their decisions.