United States: NLRB Holds Employee’s Obscene Facebook Post Criticizing Supervisor Is Protected

We have written previously about the expanding scope of social media activities that the National Labor Relations Act protects and the tight limits the NLRB places on an employer's ability to discipline employees for work-related communications that take place online. As the Board's latest ruling makes clear, employee social media communications that relate to working conditions or unionization will often be protected even if they are offensive, obscene or attack individual members of management personally. In Pier Sixty, LLC, 362 NLRB 59 (March 31, 2015), the NLRB upheld an administrative law judge's decision that a catering company in New York City violated sections 8(a)(1) and (3) of the NLRA when it terminated an employee for profanely attacking and insulting a supervisor in a Facebook post two days before a union certification election.

Background

In the months leading up to the social media post that precipitated the Board's ruling, employees of Pier Sixty sought union representation partly due to concerns that members of management had repeatedly spoken to them in a disrespectful and undignified manner. Two days before the union certification election, 13-year employee Hernan Perez was working as a server at a fundraising event when the Assistant Director of Banquets spoke harshly to Perez and other employees in an effort to make them more attentive to guests at the function. Perez took a break and used his iPhone to post a comment on Facebook stating that the Assistant Director "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!!!!!!!"

The Board Says Pier Sixty Violated the NLRA by Firing The Employee for the Vulgar Post

Pier Sixty learned of the post, conducted an investigation and terminated Perez two weeks later after concluding that his comments violated the company's harassment policy. Perez filed an unfair labor charge and an administrative law judge determined that his Facebook comments were protected under the NLRA. Affirming the administrative ruling, the NLRB set forth the following factors for assessing whether obscene social media posts are entitled to NLRA protection: (1) whether the employer has a record of antiunion hostility; (2) whether the employer provoked the employee's conduct; (3) whether the conduct was impulsive or deliberate; (4) the location of the offending social media post; (5) the subject matter of the post; (6) the nature of the post; (7) whether the employer considered the language offensive; (8) whether the employer maintained a specific rule prohibiting the language at issue; and (9) whether the discipline was typical of that imposed for similar violations. Because the record showed that the work environment at Pier Sixty was permeated with hostile and offensive language, which the company regularly tolerated, the NLRB concluded that none of the factors weighed in favor of a finding that Perez' comments were so egregious as to lose the NLRA's protections.

Takeaways

While this case reinforces the expectation that, given current NLRB membership, employees can expect broad protections from discipline when complaining about working conditions on social media, several unique facts likely prevented the employer from advancing a more effective argument. Perez posted his comment in the midst of a contentious union election — when heated rhetoric should have been expected from both pro- and anti-union advocates — and ended his post with an express statement of union support. In addition, the record was replete with examples of employees using profane language without experiencing discipline, thus causing several of the factors the NLRB applied to favor the employee. Thus, while it is essential that social media policies not inhibit concerted activity, employers have not lost the right to discipline employees who use social media to engage in abusive conduct that harms morale, particularly if the communication advocates outrageous activity such as sabotaging the employer's operations. The key, as is frequently the case, is implementing and adhering to carefully drafted policies that account for the nuances of the NLRB's social media decisions.

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