The NLRB, in a rare decision related to social media use that employers will like, recently upheld an employer’s withdrawal of the rehire offers of two employees based solely on a Facebook exchange, finding that the exchange was not protected under the National Labor Relations Act because it exhibited the employees’ “planned insubordination in specific detail.”

The employer in this case was Richmond District Neighborhood Center, which operates Beacon Teen Center, a nonprofit center located at a high school in San Francisco. In May 2012, at the end of the school year, the Teen Center’s supervisor met with the staff and asked them to write down the pros and cons of working there. After the meeting, some of the employees sensed that the managers and other administrative staff had taken the expressed complaints personally and reacted negatively; so, two of the employees, Ian Callaghan, an activity leader, and Kenya Moore, a program leader, tried to schedule a follow up meeting. Their efforts, however, were unsuccessful.

When the Teen Center sent a rehire letter to Moore in August 2012 for the upcoming school year, Moore learned she was being offered a demotion from program leader to activity leader based on her summer supervisor’s negative rating of her performance during the Teen Center’s summer program. Callaghan and Moore subsequently exchanged messages on Facebook in which they discussed their plans to engage in insubordinate behavior and sabotage the Teen Center, including the following:

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

Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music 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 happyfriendly 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.

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.

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.

When the Neighborhood Center learned of the Facebook posts, it withdrew both employees’ rehire letters, stating that: “These statements give 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.” Callaghan subsequently filed a charge with the NLRB.

At the administrative hearing, the ALJ considered whether the employees’ posts were “protected concerted activity” under the NLRA and, therefore, whether the employer violated Section 8(a)(1) of the Act, which prohibits employers from interfering with the exercise of employees’ rights to organize or engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The ALJ determined that the employer did not violate Section 8(a)(1) by withdrawing the employees’ rehire letters. The ALJ noted that, while any comments Callaghan and Moore made at the May 2012 meeting were protected, the later-posted Facebook comments were not. In reaching his conclusion, the ALJ focused on the harm the posts potentially could cause the Neighborhood Center’s operations, including impacting the grants and funding it relies on.

On appeal, the NLRB affirmed the ALJ’s decision, finding 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.” The NLRB distinguished this case from those in which the disputed comments could be construed as a joke or hyperbole: “The magnitude and detail of insubordinate acts advocated 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.” Further, the NLRB explained that the Neighborhood Center “was not obliged to wait for the employees to follow through on the misconduct they advocated.”

Practical Pointers:

• While employers should be mindful that employees’ social media posts complaining about working conditions amongst themselves can constitute protected activity under the NLRA, if those posts go beyond complaining to describing intended insubordination or misconduct, such posts potentially can be the basis for discipline, including termination.