Richmond District Neighborhood Center

National Labor Relations Board - Board Decisions

Oct 28, 2014

361 N.L.R.B. 833 (N.L.R.B. 2014)

RICHMOND DISTRICT NEIGHBORHOOD CENTER 833
Richmond District Neighborhood Center and Ian Cal-
laghan. Case 20–CA–091748
October 28, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On November 5, 2013, Administrative Law Judge Jay
R. Pollack issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified below and to adopt the recommended Order
dismissing the complaint.
The only issue before us is whether an August 2, 2012
protected concerted Facebook conversation between two
of the Respondent’s employees lost the Act’s protection.
For the reasons discussed below, we affirm the judge’s
finding that the Facebook posts lost protection, and we
adopt his conclusion that the Respondent did not violate
Section 8(a)(1) by rescinding the employees’ rehire of-
fers because of the posts.
The Respondent operates the Beacon Teen Center at
San Francisco’s George Washington High School,
providing afterschool activities to students. For the
2011–2012 school year, Ian Callaghan was one of the
Beacon’s activity leaders, and Kenya Moore occupied
the program leader position, which included data-entry,
recordkeeping, and oversight duties. In May 2012, Su-
pervisor Rena Payan held a year-end staff meeting at
which she asked the employees to write down the pros
and cons of working at the Beacon. After she left the
room, the employees anonymously wrote 8 pros and 23
cons.2 After the May meeting, some of the employees
1 The General Counsel also filed a motion to strike several portions
of the Respondent’s answering brief. We grant his motion only as to
the portions that contest the judge’s finding that Ian Callaghan and
Kenya Moore’s Facebook posts were concerted activity for the purpose
of mutual aid or protection. The Respondent did not file exceptions to
that finding, and it is “procedurally foreclosed” from asserting cross-
exceptions in its answering brief. White Electrical Construction Co.,
345 NLRB 1095, 1096 (2005); see also Bohemian Club, 351 NLRB
1065, 1067 fn. 6 (2007). We deny the rest of the General Counsel’s
motion. We do not find the remainder of the Respondent’s brief to
assert any cross-exceptions. To the extent the General Counsel takes
issue with the Respondent’s characterizations of his arguments or of the
record, we find his motion to strike to be an inappropriate vehicle. See
Hydrologics, Inc., 293 NLRB 1060, 1060 fn. 2 (1989).
2 The cons included “[n]o helpful supervision/participation,” “[n]ot
enough support or communication,” “[w]e would like more responsibil-
perceived that the managers and other administrative
staff had taken their complaints personally and were giv-
ing them the “cold shoulder.” Callaghan and Moore
sought to schedule a follow-up meeting multiple times,
but Payan never agreed to it.
After the school year ended, Moore continued her po-
sition at the Beacon for the summer program, and Calla-
ghan worked for the Respondent at an offsite summer
camp. Before each school year, the Respondent sends
offer letters to those employees whom it wants to return.
The Respondent sent rehire letters to both Callaghan and
Moore for the 2012–2013 school year, but it offered
Moore a demotion to activity leader because her summer
supervisor rated her performance negatively.
The evening of August 2, Callaghan and Moore (with
a former student chiming in) had the following exchange
on Callaghan’s Facebook page:3

MOORE: U gOin baCk or nO??

CALLAGHAN: I’ll be back, but only if you and I are
going to be ordering shit, having crazy events at the
Beacon all the time. I don’t want to ask permission, I
just want it to be LIVE. You down?

MOORE: Im gOin to be a activity leader im not doin
the t.c4 let them figure it out and when they start loosn
kids i aint helpn HAHA

CALLAGHAN: hahaha. Sweet, now you gonna be one
of us. Let them do the numbers, and we’ll take ad-
vantage, 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 bitch and making it all happy-friendly-middle
school campy. Let’s do some cool shit, and let them
figure out the money. No more Sean.5 Let’s fuck it up.
I would hate to be the person takin your old job.

MOORE: Im glad im done with that its to much and
never appriciated sO we just gobe have fuN dOin activ-
ities and the best part is WE CAN LEAVE NOW ha-
haha I AINT GOBE NEVER BE THERE even thO
shawn gone its still hella stuCk up ppl there that dont
appriciate nothing

ity,” “[o]ur ideas go nowhere,” “[s]taff turnover,” “[n]ew Amps for
BANDS,” “[b]etter snack,” and “[n]eed to take youth on better outings
i.e. great america, bowling, skating, movies.”
3 The judge modified the exchange for readability. We reproduce it
exactly as it appeared.
4 Moore evidently meant “teen center.”
5 Shawn Brown was a manager at the Beacon.
361 NLRB 74

834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CALLAGHAN: You right. They dont appreciate shit.
Thats why this year all I wanna do is shit on my own.
have parties all year and not get the office people in-
volved. just do it and pretend they are not there. i’m
glad you arent doing that job. let some office junkie en-
ter data into a computer. well make the beacon pop this
year with no ones help.

MOORE: They gone be mad cuZ on wednesday im go-
in there aNd tell theM mY title is ACTIVITY
LEADER dont ask me nothing abOut the teen cenTer
HAHA we gone have hella clubs and take the kids ;)

CALLAGHAN: hahaha! Fuck em. field trips all the
time to wherever the fuck we want!

MOORE: U fUckn right see u wednesdaY

CALLAGHAN: I won’t be there wednesday. I’m outta
town. But I’ll be back to raise hell wit ya. Dont worry.
Whatever happens I got your back too.

FORMER STUDENT CHLOE GARABATO: WTF
!!! As soon as I leave you guys want to hella fun as shit
and I can be there !! HELLA MEAN !!!

MOORE: U can come why u cant

GARABATO: Because I’ll have school . And I’m try-
ing to work during school too . If you can get me job
working with you guys , I’m there for sure !!! Aha

MOORE: You see what we gO thrU we there fOr the
kids I dOnt knOw abOut everybOdy eLse

CALLAGHAN: It’s all for the kids. You gotta come in
and visit. Everyone is invited.

The next day, a Beacon employee sent screenshots of
the conversation to management. On August 13, 2012,
relying solely on the Facebook posts, the Respondent
rescinded Callaghan and Moore’s rehire offers. The Re-
spondent explained, “These statements give us great con-
cern about you not following the directions of your man-
agers 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.”
The parties did not except to the standard the judge
used to evaluate Callaghan and Moore’s Facebook con-
versation, which standard he articulated as whether their
conduct was “‘so egregious as to take it outside the pro-
tection of the Act, or of such a character as to render the
employee[s] unfit for further service.’” Neff-Perkins Co.,
315 NLRB 1229, 1229 fn. 2, 1233–1234 (1994) (quoting
Consumers Power Co., 282 NLRB 130, 132 (1986)).6
The General Counsel contends that the judge inappropri-
ately relied on what the Respondent subjectively “could
. . . conclude,” rather than applying the analysis objec-
tively. The General Counsel is correct that the standard
is an objective one. See Kiewit Power Constructors Co.,
355 NLRB 708, 711 (2010), enfd. 652 F.3d 22 (D.C. Cir.
2011); Shell Oil Co., 226 NLRB 1193, 1196 (1976),
enfd. 561 F.2d 1196 (5th Cir. 1977). But, viewing the
facts objectively, we still agree with the judge’s conclu-
sion that the employees lost the Act’s protection.7
Callaghan and Moore’s Facebook exchange contains
numerous statements advocating insubordination. See
DaimlerChrysler Corp., 344 NLRB 1324, 1325 (2005)
(finding encouragement of slowdown unprotected);
Midwest Precision Castings Co., 244 NLRB 597, 598–
599 (1979) (dismissing allegation where shop steward
urged employee to slow down work); cf. Can-Tex Indus.,
256 NLRB 863, 872 (1981) (“mere talk” about potential-
ly unprotected shutdown protected), enfd. in relevant part
683 F.2d 1183 (8th Cir. 1982); KQED, Inc., 238 NLRB
1, 2 (1978) (where no-strike clause was in place, rhetori-
cal allusion to work stoppage was protected), enfd. mem.
605 F.2d 562 (9th Cir. 1979). The employees referenced
refusing to obtain permission as required by the Re-
spondent’s policies before organizing youth activities
(“ordering shit, having crazy events at the Beacon all the
time. I don’t want to ask permission . . .”; “Let’s do
some cool shit, and let them figure out the money”;
“field trips all the time to wherever the fuck we want!”),
disregarding specific school-district rules (“play music
loud”; “teach the kids how to graffiti up the walls . . .”),8
undermining leadership (“we’ll take advantage”; “I
would hate to be the person takin your old job”), neglect-
ing their duties (“I AINT GOBE NEVER BE THERE”),
and jeopardizing the future of the Beacon (“they start
loosn kids i aint helpn”; “Let’s fuck it up”). We find the
6 In the absence of exceptions, we do not decide the appropriateness
of the judge’s test for analyzing private Facebook conversations.
Member Miscimarra agrees with the test the judge applied. See Triple
Play Sports Bar & Grille, 361 NLRB 308, 316 fn. 1 (2014) (Member
Miscimarra, dissenting in part).
7 Inasmuch as the appropriate standard is an objective one, we need
not address the Respondent’s claim that it believed that the Facebook
comments jeopardized the program’s funding, but we note in this re-
gard that the Respondent offered no evidence that the posts were
viewed by any students, parents, administrators or other funders, and no
such concern was cited in the Respondent’s letter rescinding the rehire
offers.
8 The Beacon shares a wall with one of George Washington High
School’s classrooms and needs to limit noise to respect its neighbors.
The school has a strict zero-tolerance policy on graffiti.

835
RICHMOND DISTRICT NEIGHBORHOOD CENTER

pervasive advocacy of insubordination in the Facebook
posts, comprised of numerous detailed descriptions of
specific insubordinate acts, constituted conduct objec-
tively so egregious as to lose the Act’s protection and
render Callaghan and Moore unfit for further service.9
The General Counsel argues that, viewed against the
backdrop of the complaints articulated at the May meet-
ing and Moore’s recent demotion, and considering that
neither Callaghan nor Moore had any history of insubor-
dination, the Facebook posts could not reasonably be
understood as seriously proposing insubordinate conduct.
We disagree. Callaghan and Moore’s lengthy exchange
repeatedly described a wide variety of planned insubor-
dination in specific detail. Broyhill & Associates, Inc.,
298 NLRB 707, 709–710 (1990) (no protection for em-
ployee who “expressed quite clearly over and over again
. . . that he was not going to work the night schedule”).
We are not presented here with brief comments that
might be more easily explained away as a joke, or hyper-
bole divorced from any likelihood of implementation.
See, e.g., Hahner Foreman & Harness, Inc., 343 NLRB
1423, 1424 (2004) (employee’s joke about work slow-
down did not lose protection of the Act); Leasco, Inc.,
289 NLRB 549, 549 fn. 1 (1988) (finding that an em-
ployee did not lose the Act’s protection by telling a com-
pany official that “if you’re taking my truck, I’m kicking
your ass right now,” as it was not a serious threat of
physical harm in the context of the workplace’s culture).
The magnitude and detail of insubordinate acts advocat-
ed in the posts reasonably gave the Respondent concern
that Callaghan and Moore would act on their plans, a risk
a reasonable employer would refuse to take. The Re-
spondent was not obliged to wait for the employees to
follow through on the misconduct they advocated.
Broyhill, 298 NLRB at 707–710 (where employee said
he “could not and would not work 12 nights,” “would
just take time off,” and “get sick a lot,” “[r]espondent
was not obliged to wait for [him] to carry out his threat”).
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Yasmin Macariola, Esq. for the General Counsel.
Nicole L. Meredith, Esq. (Vogl, Meredith Burke LLP), for the
Respondent.
9 In so finding, we do not rely on the employees’ use of profanity or
disparaging characterizations of the Respondent’s administrative and
managerial personnel.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge: I heard this
case in trial at San Francisco, California, on July 23, 2013. On
October 19, 2012, Ian Callaghan (Callaghan) filed the charge
alleging that Richmond District Neighborhood Center (Re-
spondent or the Employer) committed certain violations of
Section 8(a)(1) of the National Labor Relations Act (the Act).
The charge was amended on December 4, 2012, and January
14, 2013. The Regional Director for Region 20 of the National
Labor Relations Board issued a complaint and notice of hearing
on May 29, 2013, against Respondent alleging that Respondent
violated Section 8(a)(1) of the Act. An amended complaint
issued on July 9, 2013. Respondent filed timely answers to the
complaints, denying all wrongdoing.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California nonprofit corporation, with a prin-
cipal place of business in San Francisco, California, has been
engaged in the operation of community programs including
after school and summer programs for youth. During the 12
months prior to the issuance of the complaint, Respondent re-
ceived gross revenues in excess of $250,000. During the same
period of time, Respondent purchased and received goods val-
ued in excess of $5000 which originated outside of California.
Accordingly, Respondent admits and I find that Respondent is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent is a nonprofit corporation that develops and pro-
vides high quality youth, adult, and family programs that ad-
dress critical community needs. One of these programs pro-
vides after school activities for high school students in the Bea-
con Teen Center space located at George Washington high
school in the Richmond District of San Francisco. Ian Calla-
ghan, the Charging Party, and Kenya Moore worked for Re-
spondent at the Beacon Teen Center. General Counsel con-
tends that Respondent discharged Callaghan and Moore be-
cause they engaged in protected concerted activities. Respond-
1 The credibility resolutions here have been derived from a review of
the entire testimonial record and exhibits, with due regard for the logic
of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings here, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.

836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent contends that Callaghan and Moore were not engaged in
concerted activities and that their conduct was not protected.
B. Facts
Callaghan worked as a teen activity leader. Moore was the
teen center program leader. On July 30, 2012, Callaghan was
sent a rehire letter as a teen activity leader. Moore was demot-
ed and sent a rehire letter as a teen activity leader and not as
teen center program leader.
In May 2012, the teen center employees had a staff meeting
at which supervisor Rena Payan asked the employees to fill out
evaluations regarding her job performance. She then instructed
the staff to fill out a large piece of butcher block paper regard-
ing the pros and cons of working for Respondent. The teen
center employees wrote down issues such as: feeling unappre-
ciated, not having enough time to create quality programs; lack
of supervision: feeling directionless; having problems with
transparency with the office staff especially regarding the
budget; not knowing how much money they were allowed to
spend on projects; their ideas being ignored; feeling mistreated;
and high worker turnover during the school year which the
youth complained about and made their jobs difficult. Calla-
ghan attempted to set up a follow-up meeting but was rebuffed.
Callaghan testified that after the May meeting the office staff
turned a cold shoulder to the teen center employees.
On August 2, 2012, Moore contacted Callaghan through Fa-
cebook. This was the first and only Facebook conversation
Callaghan had with Moore since he had worked with her during
the last school year. Callaghan was Facebook friends with
Moore, employee Sarah Godfrey and manager Alexandria Tom.
Callaghan was also Facebook friends with former student
Chloe Garabato who left the program when she graduated from
high school. At that time, Callaghan’s Facebook page was set
to “just my friends” and was not public.
The Facebook conversation, which resulted in the withdraw-
al of the rehire letters to Callaghan and Moore, stated the fol-
lowing:

Moore: U goin’ back or no??

Callaghan: I’ll be back, but only if you and I are going to be
ordering shit, having crazy events at the Beacon all the time. I
don’t want to ask permission, I just want to be LIVE. You
down?
Aug.2 at 7:23pm

Moore: I’m goin’’’ to be a activity leader I’m not doing the
t.c. [sic] let them figure it out and they start loosin’ kids I ain’t
help’n HAHA
Aug. 2 at 7:25pm

Callaghan: ha ha ha. Sweet. Now you gonna be one of us.
Let them do the numbers, and we’ll take advantage, play mu-
sic loud, get artists to come in and teach kids how to graffiti
up the walls and make it look cool, get some good food. 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. No more Sean. Let’s fuck it
up. I would hate to be the person taking your old job.
Aug 2 at 7:29 pm

Moore: I’m glad I’m done with that its to much and never
appreciated so we just go be have fun doing activities and the
best part is WE CAN LEAVE NOW hahaha I AINT GON
BE NEVER BE THERE even tho [sic] shawn gone its still
hella stuck up ppl there that don’t appreciate nothing.

Aug 2 at 7:32pm

Callaghan: You right. They don’t appreciate shit. That’s
why this year all I wanna do is shit on my own. Have parties
all year and not get the office people involved. Just do it and
pretend thay [sic]are not there. I’m glad you aren’t doing that
job. Let some office junkie enter data into a computer. Well
make the beacon pop this year with no ones help.

Aug 2 at 7:40pm

Moore: They gone be mad cuz on Wednesday I’m goin’
there add tell them my title is ACTIVITY LEADER don’t ask
me nothing about the teen center HAHA we gone have hella
clubs and take the kids

Aug 2 at 7:45pm

Callaghan: hahaha! Fuck em. Field trips all the time to
wherever the fuck we want!

Aug 2 at 7:48 pm

Moore: U fuck’n right see you Wednesday

Aug 2 at 7:49pm

Callaghan: I won’t be there Wednesday. I’m outta town.
But I’ll be back to raise hell wit ya. Don’t worry. Whatever
happens I got your back too.
Aug 2 at 7:56pm

Chloe Garabato: WTF!! As soon as I leave you guys want
to hella fun as shit I can’t be there!! HELLA MEAN!!!

Aug 2 at 8:16 pm

Moore: U can come why you can’t

Aug 2 at 8:18 pm

Chloe Garabato: Because I’ll have school. And I’m trying
to work during school too. If you can get me a job working
with you guys, I’m there for sure!!! Aha.

Aug 2 at 8:22pm

Moore: You see what we go thru we there for the kids I
don’t know about everybody else

837
RICHMOND DISTRICT NEIGHBORHOOD CENTER

Aug 2 at 8:25pm

Callaghan: It’s all for the kids. You gotta come in and visit.
Everyone is invited.

Aug 2 at 9:47pm

On August 3, 2012, Sarah Huck, family program coordina-
tor, sent screenshots of Callaghan’s and Moore’s Facebook
conversation to her Supervisor Brock Ogletree and Beacon
Director Michelle Cusano. Cusano then sent an email to human
resources manager Jan Nicholas requesting that Callaghan and
Moore not be rehired. Nicholas, Cusano, and Executive Direc-
tor Pat Kaussen decided to terminate the two employees on
August 6. On August 13, 2012, Respondent sent Callaghan and
Moore letters rescinding their rehire offers, citing concerns
based on their Facebook conversation that the employees would
not follow directions of their manager and could endanger the
youth.
C. Respondent’s Defense
Respondent contends that Callaghan and Moore were not
looking toward group action or seeking to initiate action in
concert with other employees. Respondent further contends
that Callaghan and Moore were discharged for insubordination.
D. The Discharges
Pursuant to Section 7 of the Act, employees have the right to
engage in concerted activities for their mutual aid and protec-
tion. Employees having no bargaining representative and no
established procedure for presenting their grievances may take
action to spotlight their complaint and obtain a remedy. NLRB
v. Washington Aluminum Co., 370 U.S. 9, 12–15 (1962). Ac-
cordingly, an employer may not, without violating Section
8(a)(1) of the Act, discipline or otherwise threaten, restrain, or
coerce employees because they engage in protected concerted
activities.
The Act protects employees who engage in individual action
which is “engaged in with the objective of initiating or inducing
group action.” Mushroom Transportation Co. v. NLRB, 330
F.2d 683, 685 (3d Cir. 1964); Owens-Corning Fiberglas Corp.
v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969). Moreover, an
employee need not first solicit other employees’ views for his
activity to be concerted. See Whittaker Corp., 289 NLRB 933,
933–934 (1988) (employee was engaged in concerted activity
where, not having had a chance to meet with any employee
beforehand, he made a comment in protest as a spontaneous
reaction to the employer’s announcement that no annual wage
increase would be forthcoming). See also Enterprise Products,
264 NLRB 946, 949–950 (1982); Cibao Meat Products, 338
NLRB 934, 934 (2003). The Board’s test for concerted activity
is whether the activity is “engaged in, with or on the authority
of other employees, and not solely by and on behalf of the em-
ployee himself. Myers II, 281 NLRB 882 (1986). The question
is a factual one and the Board will find concert “when the rec-
ord evidence demonstrates group activities, whether ‘specifical-
ly authorized’ in a formal agency sense or otherwise.” Id. at
886.
In their May meeting, Callaghan, Moore and the other em-
ployees were engaged in protected activity when they listed
their concerns with Respondent’s program. They acted in con-
cert when listing their concerns and presenting them to supervi-
sion. General Counsel argues that Callaghan’s and Moore’s
Facebook conversation was a continuation of the complaints
made in the May meeting.
In the Facebook conversation, the two employees continued
to discuss the complaints that Respondent’s office staff viewed
the teen center employees as “line workers,” the office staff’s
lack of appreciation for the teen center staff, and Respondent’s
failure to respond to employees’ concerns. Further, the em-
ployees discussed Moore’s demotion.
I find that these two employees were engaged in concerted
activity when voicing their disagreement with management’s
running of the teen center. The Board finds concerted activities
where employees discuss shared concerns among themselves
prior to any specific plan to engage in group action since such
discussions generally precedes, and, are precursors to group
action. Meyers II, 281 NLRB 882 at 887 (1986).
The issue is whether the remarks of Callaghan and Moore
were protected under the Act. When an employee is discharged
for conduct that is part of the res gestae of protected activities,
the question is whether the conduct is so egregious as to take it
outside the protection of the Act, or of such character as to
render the employee unfit for further service. Dickens, Inc, 352
NLRB 667, 672 (2008); Caval Tool Division, Chromalloy Gas
Turbine Corp., 331 NLRB 858, 863 (2000); Consumers Power
Co., 282 NLRB 130, 132 (1986); Fitch Baking Co., 232 NLRB
772 (1977). Employees are permitted some leeway for impul-
sive behavior when engaged in concerted activity, as the lan-
guage of the shop is not the language of polite society. Dries &
Crump Mfg., 221 NLRB 309, 315 (1975); Phoenix Transit
System, 337 NLRB 510, 514 (2002) (even most repulsive
speech enjoys immunity provided it falls short of deliberate or
reckless untruth; federal law gives license to use intemperate,
abusive or insulting language without fear of restraint or penal-
ty if the speaker believes such rhetoric to be an effective means
to make a point) Protection is not denied to an employee re-
gardless of the lack of merit or inaccuracy of the employee’s
statements, absent deliberate falsity or maliciousness, even
where the employee’s language is stinging and harsh. CKS
Tool & Engineering, Inc. of Bad Axe, 332 NLRB 1578, 1586
(2000); Delta Health Center, Inc., 310 NLRB 26 (1993).
Respondent contends that the Facebook conversation en-
gaged in by Callaghan and Moore was not protected under the
Act. Respondent argues that the Facebook comments were
detrimental to the teen center’s eligibility for grants and other
funding. Callaghan stated that he would have crazy events and
not seek permission. He stated he would play loud music and
get artists to place graffiti on the walls. He stated he would do
some “cool shit” and let Respondent figure it out. Callaghan
also stated he would have parties all year and field trips all the
time.
Moore stated, “when they start loosn kid I aint helpin.” She
stated they would have fun and that she would never be there.
Finally she stated that she would have ‘clubs’ and take the kids.
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent receives grants and other funding from the gov-
ernment and private donors. It is accountable to the middle
schools and high schools that it services. Respondent believed
that the Facebook comments jeopardized the program’s funding
and the safety of the youth it serves. Respondent was con-
cerned that its funding agencies and the parents of its students
would see the Facebook remarks. I find that Respondent could
lawfully conclude that the actions proposed in the Facebook
conversation were not protected under the Act and that the
employees were unfit for further service.
Accordingly, I shall recommend that the complaint be dis-
missed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent did not violate Section 8(a)(1) of the Act by
withdrawing the rehire offers to Callaghan and Moore in Au-
gust 2012.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The complaint should be dismissed.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.