Employers Finally Win NLRB Facebook Case
- November 07, 2014
Over the past several years, EmployNews has dutifully reported decision after decision from the National Labor Relations Board concluding that employees’ use of Facebook and other social media sites to complain about work, their employers, managers and customers is protected concerted activity under the NLRA. Last week, the Board found a set of facts that even it could not characterize as protected.
Richmond District Neighborhood Center involved Facebook chatter among a group of counselors at a teen center regarding their intent to engage in a pattern of insubordination at work. The employees made crude and profane statements about their intent to ignore management instructions and act as they pleased. When the employer learned of the discussion, it withdrew offers to the counselors for the upcoming school year.
The NLRB’s legal counsel contended that complaints made over working conditions during this discussion constituted protected concerted activity. It argued that the employees had no history of actual insubordination, and that the Facebook comments were not an indication of any actual intent to engage in acts of insubordination.
A three member panel of the NLRB disagreed, unanimously affirming the administrative law judge’s earlier dismissal of the complaint. The NLRB concluded that the employees’ discussion of insubordination was outside the scope of protected conduct under the NLRA. No reasonable employer would have been expected to continue the employment of persons who made these statements of intent.
The NLRB’s decision in this case should not be taken as any indication that the majority of the Board has shifted its position with respect to protections afforded to employees who lodge complaints on Facebook. The conduct here was egregious enough that the Board concluded it was not protected despite the inclusion of complaints over working conditions.
The real surprise in this case was the decision of the NLRB’s counsel to pursue the complaint in the first place, especially in a situation involving threatened conduct that could have jeopardized children’s safety if it had been carried out. The NLRB’s legal counsel is apparently taking an absolutist position that as long as the social media behavior involves complaints about work, employees are immune from repercussions, regardless of the context or potential impact on the employer and those it serves.