The Second Circuit said last week that an employer violated the National Labor Relations Act when it fired an employee who criticized a supervisor on Facebook during an election. The catch here is that the Second Circuit reached this conclusion even though the employee used profanity and hurled personal insults at the supervisor as part of his criticism. As we discussed in a post at the time of the NLRB’s initial determination, while the employee’s conduct pushed the boundaries of protected concerted activity under the NLRA, the fact that the post contained an express pro-union message and occurred in the heat of a campaign contributed to the finding that the termination was unlawful.
In NLRB v. Pier Sixty, LLC, No. 15-1841-ag (L) (April 21, 2017), when a supervisor at a catering company spoke harshly to an employee at an event two days before a union certification election the employee took to Facebook to express his disdain for the supervisor. The employee’s Facebook post included the charming message that the supervisor “is such a NASTY MOTHER F—ER don’t know how to talk to people!!!!!! F—k his mother and his entire f—ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” After the employer learned of the post, it terminated the employee for violating the company’s harassment policy.
Although the Second Circuit acknowledged that “even an employee engaged in ostensibly protected activity may act in such an abusive manner that he loses the protection of the NLRA,” it nevertheless found the evidence supported the NLRB’s conclusion that the termination was unlawful based on the “totality of the circumstances.”
First, the court noted that despite the employee’s vulgar language and ad hominin attacks on his supervisor, the subject matter of his message included workplace concerns. Consequently, the court determined that the NLRB could have reasonably concluded that the outburst “was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.”
Second, the record contained extensive evidence that the employer routinely tolerated profane language from other employees and had never terminated an employee for using foul language in the past.
Third, the court noted that Facebook is an essential communication medium for employees engaged in union organizing activities, and despite the fact that the comments were visible to the general public, the employee’s conduct did not occur in the immediate presence of customers, nor did it disrupt the catering event. The court therefore determined that the Facebook post, “although vulgar and inappropriate, was not so egregious as to exceed the NLRA’s protection.”
Although the NLRA affords broad protections to employee communications that relate to terms and conditions of employment, the court was careful to point out that the employee’s conduct in this instance came very close to crossing the line and forfeiting the law’s safeguards. In fact, the court’s opinion gives no indication that employer social media and other policies prohibiting employees from posting knowingly false, malicious, obscene or threatening remarks violate the NLRA when they are not selectively enforced against employees who make offensive – but pro-union – comments in the days immediately preceding a union election.
As the Pier Sixty decision demonstrates, in addition to having carefully drafted policies that comply with the NLRB’s current guidance on social media, employers must be able to recognize the factors that increase the chances of a violation when imposing discipline based on such policies. Nevertheless, while employers that implement policies prohibiting employees from posting vulgar and offensive comments need to be sensitive about infringing on NLRA-protected rights, they should not hesitate to enforce those policies in appropriate circumstances.