Arbitrator (Barely) Overturns Discharge In Facebook Case

Jessie Hubbard was a corrections officer with 15 years of experience at the Lebanon, Ohio Correctional Institution. The office of Governor John Kasich received an anonymous letter complaining of Hubbard’s harassing behavior. Attached to the letter were several Facebook posts made by Hubbard about Kasich, who had spearheaded the eventually unsuccessful drive to virtually eliminate public employee collective bargaining in Ohio.

One of Hubbard’s posts read: “OK, we got Bin Laden…let’s go get Kasich next…who’s with me?” Seventeen people viewed the post and indicated they “liked” the comment; four of these were employed at the Lebanon Correctional Institution.

The State fired Hubbard for engaging in harassing conduct. Hubbard’s labor organization, the American Federation of State, County and Municipal Employees (AFSCME), challenged the discharge in arbitration.

An arbitrator overturned the discharge, but reinstated Hubbard without back pay, the equivalent of a 14-month suspension. The Arbitrator started by rejecting AFSCME’s argument that Hubbard’s post was protected concerted activity: “The activity engaged by Hubbard was not concerted. He acted solely on behalf of himself, and did not initiate group action through discussion of complaints with fellow employees. The Facebook statement cannot be considered as a discussion of complaints. Additionally, disputes involving potential legislative enactments are not specific enough to be equated with existing terms and conditions of employment. Linking Bin Laden’s assassination with potentially injurious conduct against the Governor cannot be viewed as protected activity.”

However, the Arbitrator also disagreed with the State that Hubbard’s post could be viewed as a threat: “The record failed to establish the comment was anything more than empty words. Nothing in the record supports the view that the Grievant’s alleged threat was perceived as potentially dangerous to the physical well-being of the Governor. Union and Employer witnesses did not consider the comment as a serious threat. Hubbard, regardless of his military and correction experience, was not disposed to violence. Hubbard, moreover, had a good performance record with no active prior discipline.”

In the end, the Arbitrator ruled that “Hubbard disparaged the Governor and the Arbitrator does not view this as a mere joke. It was uttered in a public forum, Facebook, and exhibited a certain job-related nexus. His Facebook profile designated his job location and his public employee status. These conditions support the Employer’s position in asserting a violation of Rule 39 of the Standards of Employee Conduct in bringing discredit to the employer.”

State of Ohio, Department of Rehabilitation, #27-11-20111201-0010-01-03 (Pincus, 2013).

Note: The Arbitrator’s opinion is curiously devoid of a discussion of the United States Supreme Court’s decision in Rankin v. McPherson, 483 U.S. 378 (1987). In Rankin, a deputy constable was listening to a radio account of the attempted assassination attempt on President Reagan, and commented to a fellow worker, “Shoot, if they go for him again, I hope they get him.” The Supreme Court found the constable’s speech protected by the First Amendment.