The NLRB has again decided that using profanity-laced Facebook postings specifically aimed at management is legally protected. This decision by two members of the NLRB, despite one strong dissent, continues the pattern of granting legal protections to employees who use profanity in exercising their protected rights in support of a union or other group gripe.
A Problematic Pattern of Protection of Profanity
We’ve written on this topic in the past (take a look at our past articles “Cussing out the Boss – Profanity Towards the Boss is Protected” and “NLRB Protects Cussing out the Boss Again“) as the NLRB has found ways to protect employees who decide to express their views by using profanity in ways they would never think to speak to their grandmothers. But, of course, they are not speaking to their grandmothers – they are speaking and taking issue with management over wages, hours and working conditions. The law protects that kind of activity. The problem for employers is to know when the line of civil behavior has been crossed so that appropriate discipline can be issued to the offensive employee.
Facebook Profanity
In this most recent case, a union election was just two days away when an employee of a food service catering company was upset when his supervisor named Bob told two employees to “spread out” and “move” while bussing tables at a catering event when they seemed to be standing too close together. That instruction, which the employee took to be rude, didn’t go over well, so the employee pulled out his cell phone and posted the following message on his public Facebook page:
Bob is such a NASTY [expletive deleted] don’t know how to talk to people!!!!!! [expletive deleted] his mother and his entire [expletive deleted] family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
(The unedited message can be seen in the text of the NLRB’s decision.)
This message was seen by at least 10 other employees, including another manager, who brought it to the attention of Human Resources. Following an investigation where the employee initially denied the post, he was discharged for violation of company policy. A charge was filed with the NLRB and after a hearing, the employee was ordered to be reinstated with back pay four years after his discharge.
Why This Facebook Post Was Protected
In explaining its decision, the NLRB two-member majority relied on the finding that vulgar language was rife in the company’s workplace among managers and employees alike. Further, looking at the entire context, the use of this profanity was not so egregious to lose legal protection as indicated by the following factors:
- Whether there is evidence of antiunion hostility;
- Whether the employee was provoked by management;
- Whether the employee’s conduct was impulsive or deliberate;
- The location of the Facebook post;
- The subject matter of the post;
- The nature of the post;
- Whether the employer considered language similar to that used by the employee to be offensive;
- Whether the employer maintained a specific rule prohibiting the language at issue; and
- Whether the discipline imposed upon the employee was typical of that imposed for similar violations or disproportionate to his offense.
The dissenting member, who has dissented in other profanity cases, expressed a different view.
We live and work in a civilized society, or at least that is our claimed aspiration. The challenge in the modern workplace is to bring people of diverse beliefs, backgrounds, and cultures together to work alongside each other to accomplish shared, productive goals. Civility becomes the one common bond that can hold us together in these circumstances. Reflecting this underlying truth, moreover, legal and ethical obligations make employers responsible for maintaining safe work environments that are free of unlawful harassment. Given all this, employers are entitled to expect that employees will coexist treating each other with some minimum level of common decency. Personally directed and insulting statements like the employee’s Facebook posting about his supervisor, his mother, and his family, typically cause irreparable damage to working relationships. It serves no discernible purpose for the Board to stretch beyond reason to protect beyond-the-pale behavior that happens to overlap with protected activity. It certainly does not serve the goal of labor peace.
So What’s an Employer to Do?
At least for now, the NLRB’s view is the law, and employers should be aware of the factors that the NLRB will consider when evaluating whether profanity will be protected or not. Certainly any time a union election or organizing activity is occurring, an employer must be very careful before taking adverse action against any employee who talks about wages, hours and working conditions, whether openly on Facebook, in company emails or in the workplace. In this case, the profanity was followed by the employee’s exhortation to “Vote YES for the UNION!!!!!!!” while other profanity was tolerated in other contexts. The bottom line is that, more often than not, an employee who cusses out the boss might have a very good chance of winning in the end.Reference: Pier Sixty, LLC and Hernan Perez and Evelyn Gonzalez, (NLRB March 31, 2015).If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
