On November 12, 2013, a National Labor Relations Board (NLRB) administrative law judge (ALJ) concluded that discharged employees forfeited their rights under Section 7 of the National Labor Relations Act (NLRA) when their Facebook conversation includes comments about being insubordinate and disruptive in the workplace.
The Richmond District Neighborhood Center (“Richmond”) is a California-based non-profit corporation. Richmond operates after school and summer programs for San Francisco-area youth. One of Richmond’s programs provides after school activities for high school students at George Washington High School’s Beacon Teen Center. Ian Callaghan and Kenya Moore worked for Richmond at the Teen Center. Callaghan was a teen activity leader and Moore was the program leader at the Center.
In May 2012, Teen Center employees were asked by their supervisor to complete evaluations regarding her job performance. Employees were also asked to record the pros and cons of working at the Center. After this exercise, Callaghan sought to arrange a follow-up meeting, however, his request was denied. According to Callaghan, Center employees were given the cold shoulder after the May 2012 evaluations. On July 30, 2012, Moore was demoted to activity leader.
In August, Moore contacted Callaghan via Facebook. The exchange between Moore and Callaghan discussed whether they would be returning to work at Beacon. For his part, Callaghan wrote “I’ll be back, but only if you and I are going to be ordering shit, having crazy events at the Beacon all the time. I don’t want to ask permission. I just want to be LIVE. You down?” In response, Moore stated that their supervisor would be mad when she returned “cuz on Wednesday I’m going there add [sic] tell them my title is ACTIVITY LEADER don’t ask me nothing about the teen center HAH we gone have hella clubs and take the kids.” The remainder of the conversation included expletives and statements where both employees indicated that they would do as they please upon returning to work.
Beacon’s director learned of the Facebook exchange (through screenshots sent to her) and requested that Callaghan and Moore not be rehired. Subsequently, Callaghan and Moore were discharged based on concerns that neither employee would follow directions and that the youth at the center may be endangered. The reason for the concerns? You got it — the Facebook posts.
Callaghan filed a charge with the National Labor Relations Board alleging that he was discharged for engaging in protected social media communications under the NLRA. Richmond argued that Callaghan and Moore did not have an eye toward group action and were not seeking to initiate concerted activity.
The administrative law judge determined that Callaghan and Moore were engaged in protected activity when they documented their concerns regarding Richmond’s program in May 2012. The NLRB’s General Counsel argued that their Facebook conversation was a mere continuation of this protected activity. The ALJ agreed, stating that concerted activity exists “where employees discuss shared concerns among themselves prior to any specific plan to engage in group action since such discussions generally preceded, and, are precursors to group action.”
The employee’s statements, however, went too far to receive protection. Recommending that the complaint be dismissed, the ALJ concluded that Richmond could reasonably conclude that the actions Callaghan and Moore were proposing in their Facebook conversation was not protected because the conduct could jeopardize the program’s funding as well as the safety of the youth involved. The ALJ’s decision reinforces the point that not every social media post by disgruntled employees is protected by the NLRA. Even where, as here, employees are engaging in concerted activity, they lose the protection of the Act when their conduct is so egregious as to cause harm to the employer’s business or is of such character as to render the employee unfit for further service.
 Some of the more titillating statements in the Facebook exchange included:
- “I don’t feel like being their b*tch 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*ck it up.”
- “You right. They don’t appreciate sh*t.”
- “[H]ahaha! F*ck em. Field trips all the time to wherever the f*ck we want!”
- “[W]on’t be there Wednesday. I’m outta town. But I’ll be back to raise hell wit ya. Don’t worry. Whatever happens I got your back too.”