By: Paul Galligan and Howard M. Wexler

In Richmond District Neighborhood Center, 361 NLRB No. 74 (2014) (“Richmond”) the National Labor Relations Board (“Board”) affirmed an ALJ’s decision (previously discussed here) finding that the “insubordinate” and “egregious” Facebook comments of two employees went too far and thus lost protection of the Act, justifying their termination. The Board’s decision in Richmond came just weeks after it ruled in Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), that a Facebook discussion regarding an employer’s tax withholding calculations and an employee’s “like” of the discussion constituted concerted activities protected by the Act.

Richmond and Triple Play provide the best guidance from the Board so far as to where the boundaries are concerning “protected” employee speech about the employer in social media. The Board’s decision in Triple Play told employers that the appropriate standard to determine whether employees’ statements on social media have lost the protection of the Act was whether the communication was disloyal, reckless or maliciously untrue, applying the Supreme Court’s disloyalty standard from NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) and the Court’s defamation standard from Linn v. Plant Guards Local 114, 383 U.S. 53 (1966). Richmond adds insubordination (objectively analyzed, of course) into the mix of unprotected communications.

The Decision

In Richmond, two employees had a profanity-laced conversation via Facebook regarding their employer—a non-profit corporation that provides youth, adult, and family programs that address critical community needs in San Francisco. The employees at Richmond were not represented by any union. The Facebook communications considered insubordinate included: “Let’s do some cool sh*t, and let them figure out the money”; “field trips all the time to wherever the f*** we want!”; “teach kids how to graffiti up the walls”; “when they start loosn kids I aint helping . . .let’s f*** it up.”

Upon receiving a screenshot of this conversation, provided to management by another employee, the Company terminated both employees, citing concerns based on their Facebook conversation that the employees would refuse to follow the directions of management.

The employees alleged that their termination violated the Act because their Facebook conversation constituted protected concerted activity. In a Decision issued on November 5, 2013, ALJ Jay R. Pollack agreed that the two employees were engaged in concerted activity given that the crux of their Facebook conversation revolved around “their disagreement with management’s running of the teen center. However, the ALJ held that the comments were so egregious as to take it outside the protection of the Act, and thus the employer’s decision to rescind their job offers was lawful.

The Board agreed with the ALJ that the speech lost the protection of the Act because of its egregious nature. However, the Board disagreed with the method in which the ALJ arrived at his decision. The Board held that the correct standard for determining whether the speech lost the protection of the Act is an objective standard, and not merely whether the employer subjectively believed these employees planned on following through with their threats of insubordination. However, given the nature of these comments, the Board held that even under the more stringent objective standard, the comments set forth a “wide variety of planned insubordination in specific detail” and therefore rose to such a magnitude that even a reasonable [objective] employer would be concerned and not take the risk of continuing to employ these individuals. It should be noted that the Board distinguished these comments from those “brief comments that might be more easily explained away as a joke, or hyperbole divorced from any likelihood of implementation.” The Board also did not rely on the employees’ use of profanity.

Significance For Employers

In language that should be added to employers’ defense toolkits, the Board then held that the employer “was not obliged to wait for the employees to follow through on the misconduct they advocated.” Given that an employee’s typical first line of defense when confronted with their inappropriate social media comments is that they were just “venting” and never really intended on following through with the threats, this language is a welcome ruling for employers who do not have to sit back and actually wait for an employee to act on their contemplated insubordination.

Richmond drives home the fact that not every social media post is protected by the Act. Where, as here, an employee makes a statement that is so egregious as to cause harm to the employer’s business or is of such character as to render the employee unfit for further service, employers are allowed to take corrective action, up to and including termination. That being said, employers should still tread lightly given that the Board remains on “high alert” regarding all things relating to social media. Using the objective standard means the Board, not the employer, will ultimately decide if it is insubordination.