There Are Limits On Social Media: Facebook Comments Found Concerted But Not Protected

A National Labor Relations Board (NLRB or Board) administrative law judge (ALJ) recently 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). However, the ALJ recommended the dismissal of the unfair labor practice charge, finding that the employees waived their rights under the National Labor Relations Act (NLRA or Act) when they made comments indicating that they intended to be uncooperative or insubordinate to their employer.
 
Facts
 
Richmond District Neighborhood Center (Richmond) is a non-profit 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 an exchange on Facebook that included 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.

 

On August 3, 2012, the family program coordinator at Richmond sent screenshots of Callaghan’s and Moore’s Facebook conversation to her supervisors The Beacon director then sent an e-mail to the human resources manager requesting that Callaghan and Moore not be rehired. The Executive Director thereafter decided to terminate the two employees and sent Callaghan and Moore letters rescinding their rehire offers, citing concerns based on their Facebook conversation that the employees would not follow directions of their manager and could endanger the youth.     
 
The NLRB Case
 
Callahan filed an unfair labor charge and the General Counsel of the NLRB brought suit, alleging that Richmond discharged Callaghan and Moore because they engaged in protected concerted activities. Richmond contended that Callaghan and Moore were not looking toward group action or seeking to initiate action in concert with other employees through the Facebook posts. Richmond further contended that Callaghan and Moore were discharged for insubordination.
 
The ALJ held 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 ALJ reiterated that it is well established that employees have a right to engage in concerted activity for their mutual aid or protection, and employees who have no bargaining agent or established grievance procedure “may take action to spotlight their complaint and obtain a remedy.” When Callaghan and Moore joined with other employees in May to describe their complaints to a supervisor, they were engaged in protected concerted activity, the ALJ found. The NLRB’s general counsel argued that the Facebook exchange was merely a continuation of the complaints voiced in May, and the ALJ agreed.  
 
However, the ALJ focused the issue on “whether the remarks of Callaghan and Moore were protected under the Act.”  When an employee is fired for conduct that is part of concerted activity that would generally have statutory protection, “the question is whether the conduct is so egregious as to take it outside the protection of the Act, or such character as to render the employee unfit for further service.”
 
Richmond argued that the employees’ Facebook comments were detrimental to its eligibility for grants and other funding. The ALJ found evidence to support the employer’s claim. Specifically, he wrote that Callaghan “stated he would do some ‘cool sh*t' and let [ Richmond] figure it out,” while Moore said “when they start loosin’ kid I ain’t help’n.” The ALJ thus concluded that “the Facebook comments jeopardized the program's funding and the safety of the youth it serves.” He reasoned that Richmond had the lawful right to conclude that “the Facebook conversations were not protected under the Act and the employees were unfit for further service.” The ALJ therefore recommended that the unfair labor practice charge be dismissed.
 
Conclusion
 
The Richmond case is another in a series of decisions concerning the use of social media by nonunion employees to discuss workplace concerns. Arent Fox will continue to monitor developments in this area. For more information, please contact the authors or any other member of the Labor & Employment group.