The NLRB Finally Finds a Facebook Post it Doesn’t “Like”

In what has seemed a virtually unbroken line of cases where the U.S. National Labor Relations Board (“NLRB”) sides with employees posting about work on social media, it appears that the agency responsible for administering the National Labor Relations Act (“NLRA”) (whether the workplace is a union setting or not) has ruled against two employees who were terminated for content they published on Facebook.

In this case [pdf], employer, the Richmond District Neighborhood Center (the “Center”) operated an afterschool teen activity center in San Francisco.  The Center employed two activity leaders whose employment agreements were up for renewal. The Center initially offered to renew the employment agreements, but rescinded them after finding that the employees had posted an outrageously insubordinate profanity-laced Facebook rant about their jobs.  The employees alleged that their Facebook conversation was “protected, concerted activity” and that the Center’s decision to rescind their employment agreements violated the NLRA. In what can only be described as a breath of fresh and surprisingly rational air, the NLRB sided with the Center, holding that the employees’ conduct in posting the outrageous rant went so far that it lost the NLRA’s protection.

Interestingly, the NLRB did not focus on the profane nature of the language in the Facebook exchange, even though it was peppered with vulgarities the likes of which would make the most jaded sailor blush. Instead, the NLRB’s focus was on the fact that the Facebook posts advocated outright insubordination against the Center. The NLRB found it particularly significant that the employees repeatedly and expressly indicated that they intended to neglect their duties, violate school-district rules, and undermine the Center’s leadership. Given the express intent of the employees, the NLRB also concluded that the Center acted reasonably in rescinding the employment agreements even though the employees had not yet actually carried out any insubordinate acts.

While employers can take heart that the NLRB has finally found a Facebook post it doesn’t “like”, they should not view it as a significant change in how the NLRB views these cases. The case makes clear that, in determining whether employee conduct is protected by the NLRA, the NLRB will focus more on whether the conduct advocated or threatened insubordination and less on whether the conduct involved profane, vulgar or otherwise “colorful” language.