An employer would normally be justified in firing an employee who, during a rest break, posted on Facebook that his supervisor was a “NASTY MOTHERF[@#$]ER,” “F[@#$] his mother and his entire f[@#$]ing family!!!! What a LOSER!!!!!” But what if the Facebook post at issue also included the following language, “Vote YES for the UNION!!!!!!!”? Is the call to unionize sufficient to insulate the employee from termination? Shockingly, the Second Circuit Court of Appeals, in NLRB v. Pier Sixty LLC, found that under the circumstances the employee’s termination violated the National Labor Relations Act (“NLRA”).
The Second Circuit applied the “totality-of-the-circumstances” test to determine whether or not the employee’s obscenities were so outrageous as to lose the protection of the NLRA. The Second Circuit acknowledged that the post was dominated by vulgar attacks on the supervisor and his family, but nevertheless found the “subject matter” of the post to be about workplace concerns, citing management’s allegedly disrespectful treatment of employees as well as union election set to take place just two days later. The Second Circuit also considered the employer’s prior threat to rescind benefits and/or fire employees who voted for unionization, as well as their enforcement of a “no talk” rule. The Second Circuit found it telling that the employer consistently tolerated profanity among its workers, including similar obscenities by management, but had never previously disciplined an employee for profanity before terminating this employee, just two days before the election. Additionally, the Second Circuit noted that Facebook was a key medium of communication among coworkers and a tool for organization in the modern world, and several of the employee’s Facebook friends were in fact co-workers. Finally, the Second Circuit stressed that the employee’s outburst was not in the immediate presence of customers and did not disrupt the catering event.
Although acknowledging that it was a close call, the Second Circuit held that taking all of these factors into consideration, the National Labor Relations Board did not err in ruling that the employee’s vulgar and inappropriate post was not so egregious as to exceed the NLRA’s protection. Unfortunately, Employers faced with deciding how to respond to Facebook posts by employees that combine obscene statements targeted at the Company or supervisors with ostensibly protected speech will find little solace in the Second Circuit’s admission that this case seems to sit at the outer-bounds of protected, union-related comments.
COUNSEL TO MANAGEMENT
It is the unfortunate fact that employers faced with union campaigns have to consider the potential consequences of terminating an employee who posts disparaging and obscene language about the company and its management, but adds a pro-Union sentence at the end of the post. The Second Circuit’s decision makes it increasingly likely that employers who seek to discipline employees for such posts will find themselves subject to an Unfair Labor Practice Charge. Particularly in the context of an ongoing Union campaign, it is important employers consider the context of the employee’s actions as well as the employer’s prior actions when faced with similar misconduct. Since terminations can lead to unintended consequences, employers should consider consulting their attorneys before terminating an employee suspected of Union activity. If you have any questions or concerns about terminating an employee, please contact the Saqui Law Group.