Worker Protected Despite Posting Profane and Abusive Facebook Comment about Supervisor

A catering company should not have fired a server because he made a Facebook post which stated in relevant part that his supervisor was a “nasty mother f-----” as well as “f--- his mother and his entire f------ family.” In National Labor Relations Board v. Pier 60 LLC, the United States Court of Appeals for the Second Circuit affirmed a National Labor Relations Board (NLRB) decision holding that Pier 60 violated the National Labor Relations Act (NLRA) by terminating a server, Hernan Perez, who posted the abusive comments on Facebook in a post that alleged his supervisor did not know how to communicate with employees and encouraged coworkers to vote “yes” in an upcoming union election.  In addition to being publicly accessible, the post was accessible to Perez’s Facebook friends, which included ten coworkers.  While he took the post down three days later, his employer investigated the conduct and terminated him for it at the conclusion of its investigation.  Perez filed a charge with the NLRB alleging that he had been terminated for engaging in protected and concerted activity.  The Board ultimately agreed that the termination violated the NLRA, and the employer cross-petitioned for review by the Second Circuit when the NLRB filed a motion to enforce the agency’s order.
As a general matter, the National Labor Relations Act protects an employee from termination for engaging in protected and concerted activity.  Employees who act as part of a collective bargaining process or for “other mutual aid or protection” are protected from adverse consequences because of that action.  That said, there are circumstances where an employee engages in conduct that is so abusive that s/he loses protection under the NLRA.
In this case, the Second Circuit affirmed the NLRB’s determination that the employee’s comments, while offensive, were not so opprobrious as to exclude them from protection under the NLRA.  The court reached this conclusion because (a) the offensive comments were made during a discussion regarding a manager’s treatment of employees during a contentious period before a union election; (b) the use of profanity was common in the workplace and the employer had no previous history of discharging employees for use of profanity; (c) and the comments were made on Facebook, which is a key tool for coworker communication and union organizing, and not in a public setting in front of customers.  As such, the court affirmed the NLRB decision holding that the employer violated the NLRA by terminating the employee for making the comments.  In so doing, however, the court noted that the employee’s “conduct sits at the outer-bounds of protected, union-related comments.”  This serves as an important reminder to employees that the NLRA will only extend so far to protect them when they engage in conduct that is offensive and vitriolic.