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NLRB Finds Employee’s Extremely Profane Facebook Post was Protected Concerted Activity

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April 13, 2015

By Erin Fowler and Chris Johlie

The National Labor Relations Board recently demonstrated how far it will go to protect employees in the name of protected concerted activity. 

In Pier Sixty, LLC, an employee took to Facebook to call his manager a “NASTY MOTHER F**KER . . . F**k his mother and his entire f**king family.” The employee’s Facebook post also urged his co-workers to “Vote YES for the UNION!!!!!!!” in an upcoming union election. The employee’s post was in response to his manager’s perceived disrespectful and abusive treatment of the employee and his co-workers. The employee authored his post during break time and outside of the employer’s facility. Shortly after viewing the post, the employer discharged the employee under its harassment policy. 

In a 2-1 decision, with Member Johnson dissenting, the Board majority found the employee was unlawfully discharged. First, the majority concluded that the employee was engaged in protected concerted activity based on the clear connection between his Facebook post and the upcoming union election, as well as the employee’s protest of his manager’s perceived rude and demeaning treatment of employees. 

The majority then analyzed whether the employee forfeited the protection of the Act by his profane and abusive comments. Applying a totality of the circumstances test, the majority determined that the employee did not lose the protection of the Act for the following reasons: the employer demonstrated union hostility by its unfair labor practices committed before the election; the employer used similarly obscene language when speaking to employees; the employer did not specifically prohibit the use of profane language; the employer had never previously discharged employees for similar conduct; the employee’s conduct was an impulsive response to his manager’s behavior; the post occurred on non-working time and outside the employer’s facility; the post did not constitute harassment; and the post did not interfere with the employer’s relationship with its customers. 

Member Johnson dissented. He saw the employee’s comments as “blatantly uncivil and opprobrious” and would have upheld the discharge. He chided the majority for “stretching beyond reason to protect beyond-the-pale” behavior and saw the majority’s decision as aiding the decline of civility on the workplace.

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