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Apr 27, 2015

By Nelson Cary

Consider this employee’s Facebook post:

Bob is such a NASTY MOTHERF___ER don’t know how to talk to people!!!!!! F__k his mother and his entire f__king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

In this case, “Bob” was the employee’s supervisor. The employee (a banquet server) published the post at least 5-10 minutes after the supervisor had instructed him to “spread out” – i.e., move away from other banquet servers – while he was serving a banquet function.

NLRB says firing the employee was “unlawful”

The employee considered the supervisor’s instruction and tone to be disrespectful and demeaning. Employees generally had concerns about the way management treated them, which was one of the motivating factors for an ongoing union campaign. In fact, the Facebook post occurred two days before the union election.

In a 2-1 decision, the National Labor Relations Board recently held that the employer’s discharge of the employee for this Facebook post was unlawful. In reaching this startling conclusion, the NLRB majority found that the comments constituted protected, concerted activity and union activity in connection with the employees’ attempts to protest and ameliorate what employees believed to be rude treatment by the employer’s managers, including Bob, the subject of the Facebook post.

The NLRB held that the Facebook post was not so egregious as to lose the protection of the National Labor Relations Act.

Some factors the Board considered

In so holding, however, the NLRB expanded on a decision last year which departed from an established a four-factor test in favor of a fairly amorphous “totality of the circumstances” test. Thus, the NLRB considered nine different factors, including, for example:

  • Whether the employer “provoked” the employee’s conduct;
  • Whether the conduct was “impulsive or deliberate;”
  • Whether the employer maintained a specific rule prohibiting the language; and,
  • Whether the discipline imposed on the employee was typical of that imposed for similar violations.

The NLRB majority found that all of its nine factors, including the four examples above, weighed in favor of finding that the employee’s post was protected. For example, the NLRB noted that the employer regularly tolerated cursing and profanity in the workplace.

Examples the NLRB cited included:

  • Calling employeesmother f__ker;”
  • Asking employees questions likeare you guys f__king stupid?” and “why are you f__king guys slow?”; and
  • Referring to people as “assholes.”

Was this really “blatantly uncivil” behavior?

In addition, the NLRB majority noted that the employer had no specific rule prohibiting the language used and that the employer had only issued five written warnings to employees for use of obscene language in the past six years. There was no evidence that any employee was ever discharged solely for the use of such language.

NLRB Member Harry Johnson, III, a Republican, dissented. He found that the employee’s behavior was “blatantly uncivil and opprobrious,” and that the NLRA could not have been intended to protect the employee’s “profane, personally directed tirade, going after his supervisor and his supervisor’s mother and family.”

Thus, the employee’s language in the Facebook post was qualitatively different from the comparative profanity relied upon by the majority. Moreover, he noted that the behavior was not impulsive because the Facebook post occurred at least 5-10 minutes after the instruction from the supervisor to “spread out.”

For employers who are focused on maintaining a civil workplace, the NLRB’s decision is certainly disappointing.

Takeaways for employers

Some of the important lessons from the case include:

  • Maintain rules that clearly delineate acceptable and unacceptable behaviors. Labor professionals should ensure that those rules simultaneously comply with the NLRB’s restrictions on conduct rules;
  • Consistently enforce employee misconduct rules. The employer here allowed other profanity and vulgar language in the workplace and had never fired anyone for it;
  • Carefully consider employee misconduct situations which arise in the course of union organizing activity or other protected, concerted activity. Here, the post was two days before a union election and near the end of many months of concerted activity by employees to remedy the mistreatment the employees believed there were subjected to;
  • Train managers and supervisors in constructive ways of engaging, coaching, and disciplining subordinates; and
  • Always remember to view the conduct through the prism the NLRB majority will use to fully assess the risks associated with anticipated employer action. The current NLRB will protect conduct that many labor professionals, like the HR director for the employer did here, view as “over the top.”