NLRB Rules That Employee’s Obscenity-Laced Online Post Concerning Supervisor Is Protected Activity
A few days prior to an NLRB-conducted union representation election, an employee was approached by a supervisor who, in front of guests, yelled at the employee and two co-workers, used an unnecessarily harsh tone, and waived his arms. Upset by this “disrespectful” treatment, the employee took a break and, outside of the facility, posted a message to his personal Facebook page. The message referred to the supervisor as a “NASTY M***** F***er” and a “LOSER!!!!”; stated, “f*** his mother and his entire f***ing family”; and ended with “Vote YES for the UNION!!!!!!!”
The employee was terminated for violation of the company’s long-standing obscenity policy. The union filed an unfair labor practice charge with the NLRB. In Pier Sixty, LLC and Hernan Perez, 362 N.L.R.B. No. 59 (Mar. 31, 2015), a divided NLRB panel ruled that the employee’s Facebook post was protected by National Labor Relations Act and consequently, that his discharge violated the Act.
The Board’s analysis turned on two specific facts. First, regardless of its written policy, since 2005 the employer had never discharged any employee for using obscene language, and had issued only five written warnings to employees for doing so. Second, the employee’s use of obscene language in his posting was not “qualitatively different from profanity regularly tolerated by” the employer. As the NLRB stated, “the overwhelming evidence establishes that, while distasteful, [the employer] tolerated the widespread use of profanity in the workplace, including the words “f***” and “motherf*****.”
The takeaway: employers that maintain anti-obscenity and anti-bullying policies should insure that these policies are consistently implemented and that discipline for violations of the policies is likewise consistent.