A few weeks ago, I wrote a blog post about the recent line of NLRB cases examining what constitutes “protected, concerted” activity in the context of employees engaging in profane, insulting, or disrespectful conduct or talk about their jobs or their supervisors. As I noted, there is a clear trend at the NLRB to find this kind of behavior protected by the National Labor Relations Act (NLRA), whether it occurs in the workplace or in social media.
However, in a case decided last week, the NLRB made clear that there is a line that employees may not cross without losing NLRA protection.
In that case, the Richmond District Neighborhood Center, which operated an afterschool teen activity center in San Francisco, employed two activity leaders whose employment agreements were up for renewal. The activity center initially offered to renew those employment agreements, but rescinded the offers after discovering that the activity leaders had engaged in a profanity-laced Facebook rant about their jobs. The employees filed an unfair labor practice charge, alleging that their Facebook conversation was “protected, concerted” activity and the activity center’s refusal to renew their agreements violated the NLRA. In a decision bucking the current trend, the NLRB sided with the activity center, holding that the employees’ conduct went so far that it lost the NLRA’s protection and that the activity center had not acted improperly in rescinding the employment agreements.
Notably, the NLRB did not place any real weight on the profane nature of the language in the Facebook exchange, even though it was laced with the f-word and other vulgarities. Instead, the NLRB focused almost exclusively on the fact that the employees’ rant contained numerous statements advocating insubordination against the activity center. The NLRB found it particularly significant that the employees had repeatedly suggested that they would disregard school-district rules, undermine the center’s leadership, neglect their duties, and not seek required permission activities. The NLRB also concluded that the activity center had acted reasonably in rescinding the employment agreements even though the employees had not yet actually carried out any insubordinate acts.
While this decision is a welcome development, employers should not view it as a wholesale 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 crude expletives.