Rescinding Employment Offer for Insubordinate Facebook Posts Lawful: NLRB | Practical Law

Rescinding Employment Offer for Insubordinate Facebook Posts Lawful: NLRB | Practical Law

In Richmond District Neighborhood Center, the National Labor Relations Board (NLRB) affirmed the findings of an administrative law judge (ALJ) that an employer lawfully rescinded re-hire letters to individuals who posted details of potential egregious insubordination without infringing on their rights under the National Labor Relations Act (NLRA) to concertedly complain and seek to change the terms and conditions of their employment. The NLRB noted that it evaluates purported insubordinate statements or conduct using an objective standard and that an employer may discharge an employee before the employee takes announced or planned insubordinate actions.

Rescinding Employment Offer for Insubordinate Facebook Posts Lawful: NLRB

Practical Law Legal Update 4-586-4986 (Approx. 7 pages)

Rescinding Employment Offer for Insubordinate Facebook Posts Lawful: NLRB

by Practical Law Labor & Employment
Published on 04 Nov 2014 • USA (National/Federal)
In Richmond District Neighborhood Center, the National Labor Relations Board (NLRB) affirmed the findings of an administrative law judge (ALJ) that an employer lawfully rescinded re-hire letters to individuals who posted details of potential egregious insubordination without infringing on their rights under the National Labor Relations Act (NLRA) to concertedly complain and seek to change the terms and conditions of their employment. The NLRB noted that it evaluates purported insubordinate statements or conduct using an objective standard and that an employer may discharge an employee before the employee takes announced or planned insubordinate actions.
On October 28, 2014, in Richmond District Neighborhood Center, the panel (Board) heading the NLRB's judicial functions affirmed the findings of an NLRB administrative law judge (ALJ) that an employer lawfully rescinded rehire letters to individuals who posted details of potential egregious insubordination without infringing on those employees' rights under the NLRA to concertedly complain and seek to change the terms and conditions of their employment. The Board noted that it evaluates purported insubordinate statements or conduct using an objective standard and that an employer may discharge an employee before the employee takes announced or planned insubordinate actions. The Board affirmed the ALJ's dismissal of the NLRB General Counsel's unfair labor practice (ULP) complaint based on the employees ULP charges. (361 N.L.R.B. slip op. 74 (Oct. 28, 2014).)

Background

Richmond is a non-profit corporation which operated an after-school program, the Beacon Teen Center (Beacon). At the end of the 2011-2012 school year, several employees gave primarily negative feedback when completing anonymous evaluations about working at Beacon. The evaluations contained complaints about supervisors not adequately supervising, communicating or listening to employees. Ian Callaghan and Kenya Moore were among the Beacon employees who supplied the anonymous feedback and believed that their superiors ignored them in response to the negative feedback. That summer, Callaghan and Moore each worked at programs within the Richmond District. Both employees received letters from Richmond inviting them back to work the following school year at Beacon, but Moore was offered a lower position than she previously held. On Facebook, Moore and Callaghan discussed whether they would return to Beacon for the new school year and how they would treat the Beacon supervisors, the students and their co-workers if they returned. The employees' posts discussed extensively their frustrations with Beacon management, their jobs and their intentions to break Beacon's rules in the coming year.
When another employee who had access to the private Facebook discussion notified Richmond of the Facebook conversation, Richmond withdrew the rehire offers to both Callaghan and Moore, noting concerns about that they would refuse to work and follow directions and, in turn, endanger the youth participants at Beacon.
Callaghan and Moore filed a ULP charge, alleging that Richmond violated Section 8(a)(1) of the NLRA by retaliating against them for engaging in protected concerted activity.
The NLRB ALJ:
  • Found that Richmond did not violate Section 8(a)(1) of the NLRA.
  • Dismissed the complaint.
The NLRB General Counsel filed exceptions and a supporting brief with the Board.

Outcome

A three-member panel of the Board (Members Miscimarra, Johnson and Schiffer):
  • Found the conduct objectively egregious as to lose the NLRA protection.
  • Affirmed the ALJ's conclusions that:
    • the employees' posts on Facebook lost the protection of the NLRA; and
    • Richmond did not violate Section 8(a)(1) when it rescinded its offers to re-hire the employees.
The Board acknowledged that:
The Board found that it was reasonable to conclude that Moore and Callaghan were advocating numerous insubordinate acts in their Facebook posts. The Board provided the context for its conclusions by publishing the full transcript of the Facebook posts and parsing out the forms of insubordination Moore and Callaghan advocated through excerpts of the Facebook posts. In particular, the Board noted that it was reasonable to conclude that Moore and Callaghan planned to:
  • Refuse to get required permission to organize youth activities when they said:
    "ordering shit, having crazy events at the Beacon all the time. I don’t want to ask permission, I just want it to be LIVE. You down?"; and
    "Let’s do some cool shit, and let them figure out the money”; “field trips all the time to wherever the fuck we want!"
  • Disregard specific school district rules (applicable because Beacon shared facilities with a high school) when they said they would:
    "play music loud..."; and
    "teach the kids how to graffiti up the walls...."
  • Undermine leadership when they said:
    "[W]e’ll take advantage”; and
    "I would hate to be the person takin your old job."
  • Neglect job duties when they said:
    "I AINT GOBE NEVER BE THERE."
  • Jeopardize Beacon's future and the safety of its youth participants when they said:
"[T]hey start loosn kids i aint helpn..."; and
"Let’s fuck it up."
The employees posted other expletive-ridden comments that the ALJ and the Board did not consider relevant for evaluating the employees' loss of NLRA protections.
The Board affirmed the ALJ's conclusions, holding that:
  • Even though the ALJ erred by applying a subjective standard (it considered Richmond's subjective interpretation of the Facebook posts) he properly concluded that Moore and Callaghan lost the protections of the NLRA through their insubordinate posts.
  • Richmond lawfully discharged Moore and Callaghan before they engaged in the planned insubordinate acts.
  • The ALJ properly refrained from relying on the profanity or disparagement of managers when concluding that Moore and Callaghan forfeited the NLRA's protections through their Facebook posts.

Practical Implications

The Board confirmed that employees may forfeit NLRA protections when their protected concerted activity is accompanied by egregious insubordination or plans for insubordination or other conduct making them unfit for employment. It is of no moment that the employees' protected concerted activity, insubordination or plans for insubordination occurs in Facebook posts.
Employers should recognize that the Board was not asked to consider whether the ALJ properly found the Facebook discussions to be protected in the outset both as a continuation of discussions of employee grievances flowing from the employer's worker satisfaction survey and as an independent discussion about changing employment terms and conditions. The employer did not file exceptions to challenge the ALJ's determinations that the conversations were protected at first before the employees' insubordination plans made them unprotected.