NLRB: Drop the F-Bomb and Keep Your Job

The NLRA may protect an employee who drops an F-Bomb about his supervisor.

What would you do if one of your employees made the following comment about a manager on Facebook?

Bob is such a NASTY MOTHER F!$%@& don’t know how to talk to people! ! ! ! ! ! F!@$ his mother and his entire f!@$ng family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !

Most employers would probably fire the employee, and that’s exactly the course of action taken by the employer in NLRB v. Pier Sixty, LLC, No. 15–1841–ag (L), 2017 WL 1445028 (7th Cir. Apr. 21, 2017).  But, the National Labor Relations Board (“NLRB”) found that the employee engaged in protected, concerted activity and ordered his reinstatement with back pay.  The Seventh Circuit Court of Appeals affirmed last week.

Section 7 of the National Labor Relations Act grants employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. That right applies to non-unionized workers as well as unionized workers.   Sections 8(a)(1) and 8(a)(3) of the NLRA, prohibit employers from discharging employees for participating in protected, union-related activity under Section 7.

But, not all statements made in the course of union activity are protected.  “[E]ven an employee engaged in ostensibly protected activity may act ‘in such an abusive manner that he loses the protection’ of the NLRA.”  Pier Sixty, 2017 WL 1445028 at *5.  Nevertheless, the Seventh Circuit in Pier Sixty found that the employee’s statements were not sufficiently “abusive” for him to lose the NLRA’s protection.  The Court relied upon three factors in affirming the NLRB.  First, the “subject matter” of the statement concerned workplace conditions — treatment of employees by management and a union election.  Second, Pier Sixty consistently tolerated profanity from employees, and never sanctioned an employee for profanity before this occasion.  Third, the “location” of the employee’s comments was an online forum, “which a key medium of communication among coworkers and a tool for organization in the modern era.”  Id. at *8.

The Court tried to limit the impact of its ruling by finding that this case involved the “outer-bounds of protected, union-related comments, and any test for evaluating ‘opprobrious conduct’ must be sufficiently sensitive to employers’ legitimate disciplinary interests.”  Id.

Obviously, context is key.  A employee who randomly complains about a manager’s deficiencies on Facebook will almost have less protection than an employee who is engage in union-organizing activities.  And, the union organization was clearly the factor that tipped the scale in Pier Sixty.  Even so, Pier Sixty provides a cautionary tale for employers, who should proceed cautiously before terminating an employee on the basis of Facebook comments.