NLRB Finds that Employer Could Rescind Offers After Workers Discussed Detailed Insubordination Plans on Facebook

In a (rare) positive social media decision for employers, the NLRB ruled on October 28th in Richmond District Neighborhood Center, Case 20–CA–091748 (Oct. 28, 2014), that two employees who discussed their insubordination plans in great detail in a Facebook “comment thread” lost the National Labor Relations Act’s protections. The discussion, the Board held, was not "protected, concerted activity," and the employees, therefore, could not file an unfair labor practice charge after they were not rehired as a result of their comments. 

The employees, Ian Callaghan and Kenya Moore, worked for a San Francisco school district’s after-school Teen Center. At the end of the 2011-12 school year, their supervisor invited anonymous comments regarding the pros and cons of work at the Center. The employees felt that, after those comments were submitted, they were given the “cold shoulder” by management; they requested a follow-up meeting, but were not granted one.

In late summer 2012, the school district sent rehire letters to employees for the 2012-13 school year; Moore’s letter notified her that she had received a demotion.  Shortly thereafter, the employees (now both offered work as “Activity Leaders”) discussed the upcoming school year on Callaghan’s Facebook page. During that conversation, they agreed on plans to cause problems for the Center, including by not asking for permission for activities (“Let’s do some cool sh*t, and let them figure out the money!”; “field trips all the time to wherever the f*ck we want!”), disregarding rules (“play music loud”; “teach the kids how to graffiti up the walls…”), undermining leadership (“we’ll take advantage”), neglecting job duties (“I AINT GOBE NEVER BE THERE”), and generally disregarding the well-being of the Center (“they start loosn kids I aint helpn”; “Let’s f*ck it up.”). The following day, a fellow school district employee provided a copy of the conversation to management. The school district immediately rescinded the two employees’ rehire letters, citing “great concerns that [the employees’] intensions and apparent refusal to work with management could endanger our youth participants.”

The employees filed an unfair labor practice charge, and the question before the NLRB, therefore, was whether the employees could claim that their discussion was covered by the Act as "protected, concerted activity." The NLRB’s General Counsel argued on behalf of the employees that, in the context of the unrest at the end of the prior school year and both employees’ overall history of compliance, their Facebook posts “could not reasonably be understood as seriously proposing insubordinate conduct.” But the NLRB disagreed, noting that the employees’ “numerous detailed descriptions of specific insubordinate acts” were fundamentally different than speech found protected in other cases, where statements could “easily be explained away as a joke” or were “hyperbole divorced from any likelihood of implementation.” This was a far different case, the Board reasoned — given the “magnitude and detail” of the acts that the employees advocated, the statements were not protected by law. The school district, the Board concluded, “was not obliged to wait for the employees to follow through on the misconduct they advocated.”

The primary takeaway for employers from this case is that, even in the age of social media, the traditional theory of “over the line” speech remains valid. Of course, employers will struggle to find clear guidance on this issue, but the fact is that where employees voice numerous “detailed descriptions of specific insubordinate acts” on social media, a good argument can be made that discipline is both appropriate and legal under the National Labor Relations Act. Employers should be sure to consult without counsel before taking any action, as this is an area of labor law that is quickly developing. Contact

Contact your Hinshaw employment attorney with any questions regarding this case or social media in the workplace generally.