Facebook Exchange Advocating Employee Insubordination Was Not Protected Activity

The Richmond District Neighborhood Center (“Richmond”) is a non-profit corporation that operates the Beacon Teen Center at San Francisco’s George Washington High School, which provides after-school activities to students.  For the 2011–2012 school year, Ian Callaghan was one of the Beacon’s activity leaders, and Kenya Moore occupied the program leader position, which included data-entry, record keeping, and oversight duties.  Before the 2012–2013 school year began, Richmond sent rehire letters to both Callaghan and Moore, but it offered Moore a demotion to activity leader because her summer supervisor rated her performance negatively.

On the evening of August 2, 2012, Callaghan and Moore (with a former student chiming in) engaged in an exchange on Callaghan’s Facebook page.  The exchange included the advocation of breaking a number of school policies and rules.  It included refusing to obtain permission as required by the Respondent’s policies before organizing youth activities (“ordering shit, having crazy events at the Beacon all the time. I don’t want to ask permission . . .”; “Let’s do some cool shit, and let them figure out the money”; “field trips all the time to wherever the fuck we want!”), disregarding specific school-district rules (“play music loud”; “teach the kids how to graffiti up the walls . . .”), undermining leadership (“we’ll take advantage”; “I would hate to be the person takin your old job”), neglecting their duties (“I AINT GOBE NEVER BE THERE”), and jeopardizing the future of the Beacon (“they start loosn kids i aint helpn”; “Let’s fuck it up”).

The next day, a Beacon employee sent screenshots of the conversation to management.  On August 13, 2012, Richmond 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.

An action by the National Labor Relations Board soon followed.  The Regional Director for Region 20 of the  NLRB filed suit challenging the recision.  The suit alleged that Richmond had violated Section 8(a)(1) of the National Labor Relations Act, which provides that an employer may not discipline or otherwise threaten, restrain, or coerce employees because they engage in protected concerted activities.

After briefing and hearing on the matter, on November 5, 2013, an administrative law judge for the NLRB found that while the Facebook conversation was concerted activity, it fell outside of the Act’s protection due to its content.  Richmond Dist. Neighborhood Ctr., NLRB ALJ, No. 20-CA-91748, 11/5/13.

On October 28, 2014, a three judge panel of the NLRB agreed.  Specifically, the Board focused on the fact that the Facebook exchange was “comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render Callaghan and Moore unfit for further service.”  The Board reasoned: “The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.”  The decision can be found here.  Richmond Dist. Neighborhood Ctr., 361 N.L.R.B. No. 74, 10/28/14.

Social media is so easy to use that the consequences of use are often not adequately considered.  Consider – bite.

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About Craig McLaughlin

I am an intellectual property attorney and trial lawyer with an office in Southern California. I enjoy representing clients and also enjoy flyfishing, skiing, golf, writing this blog and photography (see blog header). My website is: http://www.smartpropertylaw.com
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