Concerted Activity is Not Necessarily Protected: The NLRB Weighs in on Terminated Employees’ Facebook Comments

In November 2013, a National Labor Relations Board (NLRB or Board) administrative law judge (ALJ) found that two employees of a nonprofit youth center engaged in concerted activity when they discussed their workplace concerns via Facebook. Richmond Dist. Neighborhood Ctr., NLRB ALJ, No. 20-CA-91748, 11/5/13, previously reported here. The NLRB recently affirmed the ALJ’s decision, holding that while the Facebook chatter was concerted activity, it was not protected under the National Labor Relations Act (the NLRA or Act.). Richmond Dist. Neighborhood Ctr., 361 N.L.R.B. No. 74, 10/28/14.

Richmond District Neighborhood Center (Richmond) is a nonprofit corporation that develops and provides youth, adult, and family programs that address community needs. One of these programs provides after school activities for high school students in the Beacon Teen Center in the Richmond District of San Francisco. Ian Callaghan and Kenya Moore worked for Richmond at the Beacon Teen Center. Callaghan worked as a teen activity leader and Moore as the teen center program leader.

In May 2012, Callaghan, Moore, and other employees at the Beacon Teen Center met with their supervisors to voice concerns over their employment at Richmond. In July 2012, Richmond sent Callaghan a rehire letter as a teen activity leader. Moore was demoted and sent a rehire letter as a teen activity leader but not as a teen center program leader.

On August 2, Moore and Callaghan engaged in a Facebook conversation, the full account of which can be found in our previous post. Some of the highlights of the conversation included:

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 and Callaghan were later fired for the Facebook chatter and they filed an unfair labor practice charge against Richmond, claiming that the conversation was protected, concerted activity under the Act. In other words, the employees argued that they could not be fired for the discussion because it was concerted activity between employees, which the Act protects.

The ALJ concluded that the Facebook chatter, while considered concerted activity under the Act, was not protected by the Act. On appeal, before Members Philip Miscimarra, Harry Johnson, and Nancy Schiffer, was the narrow issue of whether the concerted Facebook conversation between two of the Respondent’s employees lost the Act’s protection because of its content.

The Board agreed with the ALJ and held that while the conversation was concerted activity, it fell outside of the Act’s protection due to its content. Specifically, the Board focused on the fact that the Facebook exchange contained numerous statements advocating insubordination. The Board held that 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.”

The Board disagreed with the General Counsel’s argument that, viewed against the backdrop of the complaints articulated at the May meeting and Moore’s recent demotion, and considering that neither Callaghan nor Moore had any history of insubordination, the Facebook posts could not reasonably be understood as seriously proposing insubordinate conduct. Instead, the Board explained, Callaghan and Moore’s lengthy exchange repeatedly described a wide variety of planned insubordination in specific detail. The Board reasoned as follows: “The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.” For this reason, the Board adopted the Order of the ALJ and dismissed the Complaint.

The Richmond case is an important decision from the Board regarding the use of social media by, in this case, non-union employees to discuss workplace concerns and how such discussions can lose their protection under the Act. Arent Fox will continue to monitor developments in this area. For more information, please contact the authors of this post, or the Arent Fox professional who regularly handles your matters.