A few months ago, the National Labor Relations Board (the Board) determined that an employee’s profanity-laced tirade did not lose the protection of the National Labor Relations Act (NLRA), because the tirade followed the employer’s statement that if the employee didn’t like his job, he could quit.

Recently, however, the Board found that a Facebook conversation containing numerous profane words was outside of the protection of the NLRA, even though the postings took place after a year-end staff meeting at which numerous concerns were expressed by employees about their working conditions. Richmond District Neighborhood Center and Ian Callaghan, Case 20-CA-091748, October 28, 2014.

Beacon Teen Center, operated by Richmond District Neighbor Center (RDNC) in San Francisco, provides afterschool activities to students. Ian Callaghan and Kenya Moore both were employed at Beacon. In May 2012, a year-end staff meeting was held in which employees were asked to write down the “pros and cons” of working at Beacon. Employees anonymously submitted 8 pros and 23 cons. After that meeting, some employees felt that managers had taken the comments personally, and were giving employees the “cold shoulder.”

Before each school year begins, RDNC sends offer letters to those employees whom it wants to return for another school year. Callaghan and Moore each received offer letters for the 2012-2013 school year at Beacon.

On the evening of August 2, 2012, Callaghan and Moore engaged in postings to each other on Facebook. That exchange included a number of statements related to their anticipated return to the Beacon, and referenced plans for disruptive and insubordinate behavior.

Callaghan stated: “. . . we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls. . . . I don’t feel like being their bitch and making it all happy-friendly-middle school campy. Let’s do some cool shit, and let them figure out the money. . . . Let’s f*** it up. . . .”

Moore responded: “. . . sO we just gobe have fuN dOin activities and the best part is WE CAN LEAVE NOW hahaha I AIN’T GOBE NEVER BE THERE. . . .”

The day after the postings, a Beacon employee sent screenshots of the conversation to management. On August 13, on the basis of the postings, RDNC rescinded Callaghan and Moore’s rehire offers, stating that “These statements gave us great concern about you not following the directions of your managers in accordance with RDNC program goals . . . We have great concerns that your intentions and apparent refusal to work with management could endanger our youth participants.”

A charge was filed on behalf of the two employees, and an Administrative Law Judge presided at trial in July 2013. He determined that the Facebook conversation was not protected under the Act, and that the withdrawal of the hiring letters was not unlawful. On October 28, 2014, that decision was upheld by the Board.

Of note is the fact that the Board specifically mentioned that its decision was not based on the profanity used by the employees in their postings but instead, was based on the specificity of the actions threatened by the two employees, which included neglecting their duties (“I AIN’T GOBE NEVER BE THERE”), undermining leadership (“we’ll take advantage”), disregard of rules (“play music loud” and “teach kids to graffiti up the walls”), and jeopardizing the future of Beacon (“Let’s f*** it up”).

In summary, the Board found that 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 Callaghan and Moore unfit for further service.”

In response to the argument that the two employees had no history of insubordination and that, therefore, the postings could not reasonably have been understood at as serious threat of such conduct, the Board pointed to the magnitude and detail of the proposed behavior advocated in the posts. Such postings, it said, “reasonably gave [Beacon] concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take.”

The teaching point here is clear: not every profane or unpleasant posting is outside of the protection of the NLRA; but postings that reasonably evidence an actual risk of insubordinate, dangerous, or threatening behavior that would adversely affect a business may take the writer outside of that protection.