Maybe not, according to a recently published NLRB decision. In Pier Sixty LLC, a majority of a three-member NLRB panel affirmed an ALJ’s decision that the employer violated Section 8(a)(1) and (3) of the National Labor Relations Act by firing an employee for an obscenity-laced vitriolic Facebook post towards a supervisor on the grounds that the employee’s post was protected concerted activity.
The employer, Pier Sixty, operated a catering service company. Two days before a scheduled union election, which was triggered by employees’ concerns that the Company’s management repeatedly had treated them disrespectfully, an employee named Hernan Perez worked as a server at a catered event. At that event, a Company supervisor allegedly made some disrespectful remarks to Perez and two other employees, including telling them, in a loud voice, to turn their heads toward the arriving guests and stop chitchatting and later, in a raised, harsh voice, to “spread out, move, move” when he wanted them to clear the plates from the appetizer course.
Upset by what he perceived to be the supervisor’s disrespectful treatment, Perez later that evening posted the following message about the supervisor on his personal Facebook page:
Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
The post was visible to Perez’s Facebook “friends,” which included some co-workers, as well as others who visited his personal Facebook page.
When Pier Sixty became aware of the post the next day, it conducted an investigation and eventually terminated Perez’s employment on the grounds that his Facebook comments violated company policy. The Company, however, did not identify the specific policy that the comments violated and declined to identify the basis for the termination.
Perez subsequently brought an unfair labor practices charge. The presiding ALJ determined that Perez’s Facebook comments alleged employee mistreatment and sought redress through the upcoming union election, thus qualifying as protected, concerted activity and union activity. The ALJ also noted that vulgar language was prevalent in the workplace, among both management and employees.
The reviewing NLRB panel majority agreed with the ALJ that Perez’s Facebook comments constituted protected activity. The panel also agreed that, under the totality of circumstances test, the comments were not so egregious at to fall outside the NLRA’s protection. According to the panel, significant factors supporting its finding included that:
- The Company had committed multiple unfair labor practices in the weeks leading up to the election, Perez’s comments reflected his frustration and stress after months of protesting disrespectful treatment by supervisors;
- The comments did not interrupt the work environment or the Company’s relationship with its customers;
- The employee made the comments while alone on a break and outside the Company’s facility;
- The Company regularly tolerated profanity in the workplace; and
- The Company’s identified policies and practices neither prohibited vulgar or offensive language in general nor evidenced that any employees previously had been fired solely for using such language.
This case provides several important reminders for employers. Foremost is the importance of a well written social media policy that sets forth impermissible conduct clearly and specifically. Consistent enforcement of such a policy also is critical. Finally, employers should carefully assess the context of each disciplinary and/or termination decision to determine whether protected concerted activity under the NLRA may be at issue.