If an employee calls his supervisor a “nasty motherf[**]ker” on Facebook, would the employee lose the protection that he would otherwise enjoy under the National Labor Relations Act (NLRA)? Probably not, according to National Labor Relations Board (NRLB) decisions like Pier Sixty LLC.
In Pier Sixty, an employee reacted to a labor dispute by posting the following message about his supervisor on Facebook: “Bob is such a NASTY MOTHER F[**]KER don’t know how to talk to people!!!!! F[**]k his mother and his entire f[**]ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Despite the obscenities, the administrative law judge decided that the employee’s posting was concerted activity under the NLRA, which is activity by two or more employees that provides mutual aid or protection regarding terms or conditions of employment and was not egregious enough to cause the employee to lose the NLRA’s protections. Accordingly, the judge ordered the employer to reinstate the employee. This decision is not an anomaly among decisions interpreting the NLRA. In fact, a number of NLRB cases have held that use of the “f-word” did not exceed the bounds of the NLRA’s protection.
This has left employers wondering: Is there any limit to what an employee can post? Can postings otherwise covered by the NLRA ever go too far and cross the line into unprotected activity? In a recent decision, Richmond District Neighborhood Center, the NLRB demonstrated that it will draw a line in the sand, albeit a thin and distant one. Certain situations, particularly egregious postings by employees on social media sites, may fall outside the protection of the NLRA, even when the postings otherwise involve concerted activity.
Richmond District Neighborhood Center concerned a Facebook conversation between Ian Callaghan and Kenya Moore, who were both employed as teen activity leaders at the Richmond Neighborhood District Center, a non-profit organization that provides youth and family community programs. In a conversation visible only to their Facebook friends, Callaghan and Moore complained about management and discussed plans to defy the Center’s rules, posting statements such as:
“…let them figure it out and they start loosin’ kids I ain’t help’n HAHA.”
“…we’ll take advantage, play music loud … teach kids how to graffiti up the walls…. 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.”
“HAHA we gone have hella clubs and take the kids.”
“[H]ahaha! F*ck em. Field trips all the time to wherever the f*ck we want!”
“I’ll be back to raise hell wit ya. Don’t worry.”
The Center fired Callaghan and Moore after another employee brought the conversation to its attention. Callaghan and Moore contended their activity was protected under the NLRA.
The administrative law judge found that the employees were engaged in concerted activity when voicing their disagreement with the Center’s management. The judge concluded, however, that even though the employees’ remarks constituted concerted activity, the activity was not protected under the NLRA. He stated: “[T]he question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such character as to render the employee unfit for further service.”
The Center explained that the employees’ Facebook conversation was detrimental to its eligibility for grants and could raise serious concerns for parents of the youth served by the Center. The judge agreed, finding that the conversation was not protected under the NRLA because it “jeopardized the program’s funding and the safety of the youth it serves.” Moreover, the conduct rendered the two employees “unfit for further service.” The judge dismissed Callaghan and Moore’s complaint.
Although this decision uncovers a previously obscured line in the sand with regard to protected social media activity, employers should still exercise considerable caution when responding to complaints about an employee’s use of social media. Postings that are otherwise protected by the NLRA are unlikely to lose that protection merely because they are offensive, even if they use profanity. Nonetheless, the Richmond case reveals that conduct found to endanger an employer’s funding or client safety may potentially cross the line and fall outside the wide protection of the NLRA.
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