Human Resources News & Insights

Finally: A sensible ruling by the NLRB

To say the National Labor Relations Board (NLRB) has been interpreting parts of the National Labor Relations Act (NLRA) “broadly” is being kind. In the name of upholding the act, the board’s reviewed seemingly reasonable actions employers have taken in response to worker conduct and deemed them illegal. 

Example: The NLRB recently deemed that an auto dealer’s termination of a salesman was illegal even though he was fired for his insulting and threatening behavior toward his boss.

In a nutshell, the board said the kind of behavior demonstrated by the salesman is protected under Section 7 of the NLRA if the employee was discussing workplace conditions.

Section 7 protects employees’ rights to discuss the terms and conditions of their work in a “concerted” manner. After all, how else are employees supposed to improve their working conditions (i.e., join a union) if they can’t discuss them with each other?

While there’s little debate as to the merits of the protections Section 7 provides, the NLRB’s actions against employers taken in the name of upholding Section 7 have drawn plenty of criticism.

New ruling a breath of fresh air

This is especially true when it comes to employer social media policies and the actions employers have taken in reaction to employees’ social media posts.

The NLRB has taken a hard-line stand against anything and everything employers have done that the board feels restricts employees’ ability to discuss their work conditions on social media with each other.

To employers, the board’s stance has seemed so extreme they feel their hands are tied when it comes to disciplining employees for what they say online.

That’s what makes this latest ruling such a breath of fresh air for employers. It shows that the board is willing to back employers’ decisions to discipline — and possibly even terminate — workers who go to the extreme to badmouth their employers.

The case involves the Richmond District Neighborhood Center, which is an after school teen activity center in San Francisco, and two of its activity leaders whose employment agreements were up for renewal.

Shortly after being asked in a year-end meeting to write down the “pros” and “cons” of working at the center — and having their supervisors react negatively to their comments — the two workers took to Facebook to complain about the center.

The two posted what amounted to a profanity-laced tirade on Facebook, in which they suggested they’d begin to:

  • spend activity funds frivolously
  • have parties without their supervisors’ approval, and
  • take teens on unapproved field trips.

An excerpt from the Facebook tirade:

hahaha. Sweet, now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like bein their b**** and making it all happy-friendly-middle school campy. Let’s do some cool sh**, and let them figure out the money. No more [former supervisor]. Let’s f*** it up.

After seeing the comments, the center rescinded the employees’ rehire offers.

Shortly thereafter, the employees filed an unfair labor charge, claiming their Facebook posts were “protected, concerted” activities under Section 7 of the NLRA.

Lost the act’s protection

The NLRB agreed that both employees’ statements were similar to the concerted activities the NLRA seeks to protect — as they cited working conditions, management actions and a general failure by the center to respond to employee concerns.

But the NLRB then issued this statement:

We find the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render [the employees] unfit for further service.

In other words, the NLRB determined that by advocating insubordination with such intensity, the employees crossed the line and stripped themselves of Section 7’s protections.

So, at least according to this ruling, it appears as though there are social media activities the NLRB considers beyond the pale.

It’s important to note, however, that the profane language the employees’ used had no bearing on the board’s decision in this case. It looked only at what the employees’ were advocating, not the words they used to advocate it.

When can employers draw the line?

Unfortunately, what this case doesn’t provide is a clear line in the sand at which point employee actions would warrant discipline up to and including termination.

It simply serves as an example that not all employee comments about the work conditions are protected.

When it comes to taking action against employees, we feel employment law attorney James C. Pennington of the firm Ogletree Deakins said it best on the firm’s blog after analyzing this ruling:

… it takes an extreme level of serious verbal misconduct to justify the discharge of an employee based on social media expressions. Employers should consider all online discussions of working conditions involving multiple employees as presumptively protected by the NLRA. Discipline for such conduct should be reserved for situations where employee communications advocate egregious conduct such as violence, sabotage, or insubordination.

Cite: Richmond District Neighborhood Center and Ian Callaghan

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