Yesterday, the Second Circuit federal Court of Appeals (encompassing New York) sided with the National Labor Relations Board (NLRB) and affirmed the NLRB's finding that an employee's explicit Facebook post about his boss was protected union or concerted activity and the employee's termination for making the post was, therefore, illegal. The case is NLRB v. Pier Sixty, LLC and the decision can be found here.
The case involved the unionization of employees at Pier Sixty, LLC, a catering company in New York City. One of the issues raised by the employees was disrespectful behavior by management. After an incident in which an employee felt that management was disrespectful, and approximately a week before the union vote, the employee made the following Facebook post:
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!!!!!!!
You may not be surprised that the employee was fired when his boss learned of the post. You may be surprised, however, that the termination was found to be illegal. Why? Section 7 of the National Labor Relations Act (NLRA) protects an employee's right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (See NLRB v. Pier Sixty, LLC at page 14). So even offensive speech can be protected if it falls under the category of “collective bargaining” (i.e., union activity) or if it is for “mutual aid or protection” – meaning, as a general matter, that you're not raising merely your own grievance but a grievance on behalf of all employees.
Courts give a significant amount of deference to the findings of the NLRB when interpreting the protections of the NLRA. Accordingly, the Second Circuit was unlikely to reverse the NLRB's findings – after a six-day trial – unless there was a significant departure from the law or the facts. Here, there were several factual issues that supported the NLRB's decision including the fact that, while the Facebook post was profane, the Pier Sixty workplace was laden with profanity and no employee had ever been terminated for profanity in the past. Coupled with the fact that the Facebook post specifically stated “vote yes for the union” and the fact that the union vote was the following week, there was support for the finding that the employee was really fired for his union activity and not for using foul language. Additionally, when considering whether activity that might otherwise be protected is so offensive that it loses its protection, whether that offensive conduct was precipitated by the employer's actions is considered. Here, the Facebook post was motivated by disrespectful behavior by management which was one of the reasons the employees were unionizing in the first place.
While the Court found in favor of the employee, it did emphasize that this particular case was on the “outer‐bounds of protected, union‐ related comments” given its use of profanity and its direction at individuals other than the employee's boss himself (i.e., his mother and family).
There is always the risk of retaliation when speaking out against an employer – particularly since not all speech is protected and it must fall under the protections of the NLRA for retaliation to be illegal (unless you work for a public employer and enjoy some, also limited, First Amendment protection). When making a public statement about his or her workplace, an employee should not only be cognizant of and prepared to deal with the risk of retaliation, but should also endeavor to be the one who comes out smelling like a rose. So, maybe, leave the four-letter words out of it.