The National Labor Relations Board (“NLRB”) upheld a San Francisco nonprofit’s decision not to rehire two employees due to their Facebook conversation. In Richmond District Neighborhood Center, the nonprofit ran an after-school center for high school students (the “Center”). In May 2012, the Center held a meeting in which personnel anonymously identified the pros and cons of working at the Center; the meeting resulted in a significant number of concerns to management. Shortly thereafter, two of the employees in attendance thought that management was not taking those concerns seriously and tried to meet with their supervisor—to no avail.

The Center employed its personnel on an annual basis, with employment ending at the conclusion of the school year and the Center re-hiring much of the same personnel prior to the new school year according to its needs and funding. As part of that process, the Center offered the same two employees re-employment for the next year, although one was demoted due to a poor performance review. The employees then engaged in a Facebook conversation that advocated insubordinate acts including: refusing to obtain required permission before organizing youth activities, disregarding specific school-district rules, neglecting their duties and jeopardizing the Center’s future. Another employee forwarded the conversation to the Center’s management, which withdrew the employees’ re-employment offers.

The National Labor Relations Act (the “Act”) protects employees’ rights to engage in concerted activity for their mutual benefit and aid. An employer cannot discipline an employee for having engaged in activity protected under the Act. The NLRB has broadly recognized protection in social media activities, recently extending the Act’s protections in the Facebook context to approval of commentary critical of an employer and an employee’s profane tirade.

Here, however, the NLRB sided with the employer. The NLRB concluded “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 [the two employees] unfit for further service.” The NLRB rejected the argument that, considered against the background of the May 2012 meeting and the employees’ record showing no history of insubordination, the conversation could not reasonably be viewed as proposing insubordinate conduct. Rather, given “the magnitude and detail of insubordinate activities advocated,” the Center was reasonably concerned the employees would act on their plans. The NLRB observed that the Center “was not obligated to wait for the employees to follow through on the misconduct they advocated.”

While encouraging, the decision does not provide unfettered discretion to discipline employees for online activities that are critical of an employer or seemingly propose insubordinate activity. Employers must use great care in responding to such activity and are advised to consult counsel before taking any action.