Facebook Talk Went Too Far, NLRB Finds, Allowing Employer to Head Off Misconduct

By Lawrence E. Dubé

Oct. 29 — Employees who used Facebook to boast about plans for insubordination and disruptive workplace conduct forfeited the protection of federal labor law, and their employer lawfully terminated their employment, the National Labor Relations Board ruled Oct. 28.

NLRB Members Philip A. Miscimarra, Harry I. Johnson, and Nancy J. Schiffer agreed with an administrative law judge that Richmond District Neighborhood Center lawfully withdrew employment offers for Ian Callaghan and Kenya Moore after it learned they planned to engage in insubordination when they returned to work at the start of the California teen center's new school year.

The NLRB's general counsel argued that the employees never seriously proposed to engage in insubordinate acts, but the board said the employer was “not obliged to wait for the employees to follow through on the misconduct they advocated.”

Workers Had Been Offered Continuing Employment

According to the decision of the board and an NLRB administrative law judge, Callaghan and Moore worked at the employer's Beacon Teen Center in a San Francisco high school, where the company provides after-school activities for teenagers.

Both employees participated in a May 2012 staff meeting where employees expressed dissatisfaction on a number of subjects. Callaghan and Moore sought a follow-up meeting, which the employer rebuffed. The employees alleged their relationship with the center was chillier thereafter.

On July 30, the employer sent Callaghan and Moore letters offering them rehire at the Beacon Center for a new school year, and the two employees discussed their plans in an Aug. 2 conversation on Callaghan's Facebook page.

Facebook Conversation Threatened Insubordination

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?”

Moore responded that “Wednesday I'm going there” and “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.”

Callaghan replied, “hahaha! Fuck em. Field trips all the time to wherever the fuck we want,” and Moore wrote, “U fuck'n right see you Wednesday.”

Callaghan's Facebook page limited access to his designated “friends,” but an employee gave management a screen shot of the conversation, and the neighborhood center withdrew its offers of employment to Callaghan and Moore.

Conduct Went Beyond NLRA Protection

The NLRB's general counsel alleged the employees were discharged in violation of Section 8(a)(1) of the National Labor Relations Act because they had concertedly complained about working conditions, but an administrative law judge dismissed the complaint, and the board affirmed the action.

The general counsel argued that the employment terminations had to be considered in the context of their complaints about work-related issues. Neither employee had any history of insubordination, and the general counsel argued their Facebook remarks could not seriously be considered statements of their actual intentions, but the board disagreed.

The board members said they did not rely on the employees' profane language or disparaging remarks about management, but found that their discussion of insubordination and workplace disruptions put them outside the protection of the NLRA.

Dismissing the unfair labor practice complaint, the board found, “The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and