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Labor Relations Update

NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity

Posted in Employer policies, Facebook, NLRA, NLRB, Protected activity, Social Media, Social Media Policies

 In Richmond District Neighborhood Center, Case 20-CA-091748 (Oct. 28, 2014), the Board upheld an Administrative Law Judge’s ruling that a conversation between two employees, who were involved with student programming at the neighborhood center, was not protected under the NLRA.  During the course of their Facebook exchange, which included obscenity-laced statements regarding how they would “raise hell” at the center, the employees lost protection under the NLRA because of their threats of insubordination.

The employees discussed at length how they would supplant the “happy-friendly-middle school campy” atmosphere at the center with a reckless regime of “field trips all the time to wherever [ ] we want” and other activities at variance with the center’s management. After management received screenshots of this prolonged exchange, they rescinded the re-hire offers for these two former employees for the following year.

The Board adopted the ALJ’s finding that the “Facebook exchange contains numerous statements advocating insubordination.”  In particular, the employees:

  • Refused to obtain      permission as required by the Employer’s policies (“ordering [ ], having      crazy events at the Beacon all the time. I don’t want to ask permission.”)
  • Disregarded specific      school-district rules (“teach the kids how to graffiti up the walls…”)
  • Undermined leadership (“I      would hate to be the person takin your old job”)
  • Neglected their duties (“I      AINT GOBE NEVER BE THERE”)
  • Jeopardized the future of      the institution (“they start loosn kids I aint helpn”)

Despite the General Counsel’s argument that the ALJ incorrectly applied a subjective standard of what the employer “could” conclude, the Board found that the employees’ “pervasive advocacy of insubordination in the Facebook posts, compromised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection.”  In adopting an objective standard, the Board noted here that the actions were described in such detail that a reasonable employer would reasonably refuse to take the risk of waiting to see whether the employees would act on the conduct they so artfully advocated.

This decision places reasonable limits on what the Act protects when employees, even when acting concertedly, plot to undermine the employer’s legitimate business expectations through insubordination.  It is not a guarantee, however, that similar conduct will always be found to have lost the Act’s protection.  There is ample evidence in other work rules and social media cases that neither the Board nor the General Counsel will hesitate to second-guess what appear to be common sense, reasonable employer rules and how an “objective” employee will read them.

Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.