11.26.2013

Nonprofit Employees’ Insubordinate Statements on Facebook Held Not Protected Under the NLRA


A National Labor Relations Board (NLRB) administrative law judge (ALJ) recently found that an expletive-ridden Facebook conversation between two employees of a nonprofit youth center were so egregious as to take the comments outside the protection of the National Labor Relations Act (NLRA) and warranted dismissal. 

The case, Richmond District Neighborhood Center v. Ian Callaghan, involved a California nonprofit organization engaged in the operation of community programs including after school and summer programs for youth. The organization rescinded offers to rehire to two employees after it learned of an expletive-ridden Facebook conversation between the employees. The conversation included the following statements:
  
  • “I’m not doing the t.c. [sic] let them figure it out and they start loosin’ kids I ain’t help’n HAHA”
  • “I don’t feel like being their b***h and making it all happy-friendly middle school campy.  Let’s do some cool s**t, and let them figure out the money. * * * Let’s f**k it up.”  
  • “We gone have hella clubs and take the kids J
  • “F**k em.  Fields trips all the time to wherever the f*** we want!”

The ALJ concluded that the employees were engaged in concerted activity by voicing their disagreement with management’s running of the teen center. However, the ALJ held that the remarks were not protected under the NLRA because the conduct was so egregious in this circumstance to take it outside the protection of the Act and of such a character to render the employees unfit for service. 

In reaching this decision, the ALJ pointed to the fact that the nonprofit organization relied upon grants and other funding from the government and private donors. The ALJ found that the organization was concerned that funding agencies and parents of students could see the Facebook conversation, and that such remarks could jeopardize the program’s funding and the safety of the youth served by the program. Citing the employees remarks about doing some “cool s**t” and letting the organization “figure out the money,” having and taking the kids to “hella clubs,” and taking field trips to wherever they wanted, the ALJ found that the organization lawfully concluded that the actions proposed in the employees Facebook conversation were not protected under the Act and that the employees were unfit for further service. 



Contact: Emily Wilcheck
419.254.5260

11.14.2013

Informational Picketing Does Not Fall Under Ten-Day Statutory Notice Requirement

On October 23, 2013, the Ohio Supreme Court ruled that the statute requiring employee-union picketers to give their employers ten days’ notice does not apply to picketing that is only informational in nature. According to the Court, the statute, R.C. 4117.11(B)(8), only applies to picketing related to a work stoppage, strike, or refusal to work (Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., Slip Opinion No. 2013-Ohio-4654).

The case arose during contract negotiations in 2007 between the Mahoning County Board of Developmental Disabilities (MCBDD) and the Mahoning Education Association of Developmental Disabilities, the union representing MCBDD employees. On November 5, 2007, employer MCBDD held a board meeting in a county-owned building. Union representatives peacefully picketed outside the building before the meeting. The union did not notify MCBDD or the State Employee Relations Board (SERB) prior to picketing. The union and the employer agreed that the union’s picketing was related to the successor contract negotiations and the picketers were seeking a fair contract and expressing dissatisfaction with the progress of negotiations. The union did not strike or give written notice of any intent to strike.

MCBDD filed an unfair-labor-practice charge later that month with SERB, alleging, in part, that the union had violated the notice requirements of R.C. 4117.11(B)(8). SERB found that the union had committed an unfair labor practice by failing to give the required ten-day notice before picketing. The union appealed to the Mahoning County Common Pleas Court, arguing that the statute is unconstitutional on its face and as applied to the specific facts of this case because it is a content-based restriction on the union’s right to free speech. The common pleas court, however, agreed with SERB’s decision. The union appealed to the Seventh District Court of Appeals, which determined that the notice requirement in the statute is unconstitutional. Employer MCBDD and SERB appealed to the Ohio Supreme Court.

The Supreme Court affirmed the judgment of the Seventh District Court of Appeals, not on constitutional grounds but based on statutory interpretation. The Court relied on the plain language of the statute and held that the Ohio General Assembly didn’t intend for the statute to apply to informational labor picketing. “The statute applies only to picketing related to a work stoppage, a strike, or other ‘concerted refusal to work.’ Therefore, the statute was improperly applied to the union’s picketing activity in this case, and the union did not commit an unfair labor practice.”

“R.C. 4117.11(B)(8) states that it is an unfair labor practice to ‘[e]ngage in any picketing, striking, or other concerted refusal to work’ without giving the requisite notice. (Emphasis added.).” The Court reasoned that: “The phrase ‘other concerted refusal to work’ would not have been used unless the previous two activities, ‘picketing’ and ‘striking,’ are also concerted refusals to work. Thus, the legislature intended the notice requirement to apply only to a specific type of picketing, i.e., picketing related to a work stoppage.”

The Court concluded that “R.C. 4117.11(B)(8) does not apply to informational labor picketing unrelated to a concerted refusal to work,” and, “Because the statute does not apply to the union’s picketing activity in this case, the union did not commit an unfair labor practice.”

Employers of union employees should be aware of this recent decision and the Supreme Court’s interpretation of R.C. 4117.11(B)(8). Like it or not, picketing unrelated to a concerted refusal to work requires no advance notice. 



Contact: Alex Kipp
216. 820.4204
akipp@ralaw.com