• NLRB Finds Facebook Rant Is Protected Concerted Activity
  • May 13, 2015
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • The National Labor Relations Board found that a worker’s profane comments about his supervisor and supervisor’s family on Facebook were protected under the National Labor Relations Act.

    Facts of the Case: In Pier Sixty, LLC, two days before a union election that was driven, in part, by the disrespectful treatment of employees by management, a worker became frustrated by his supervisor’s manner towards him and fellow workers. During a break, the worker posted the following comments on his Facebook page, which was visible to his Facebook “friends” including co-workers: “Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” The employer fired the worker, stating that his Facebook posting had violated company policy.

    The Board’s Ruling: The Act protects employees’ rights to engage in union activity and in concerted activity, such as discussing the terms and conditions of employment. Such activity can lose the protection of the Act, however, if sufficiently egregious. In this case, however, the Board determined that, in looking at the totality of the circumstances, the worker’s comments were not so egregious so as to lose the protection of the Act. Among the factors the Board considered were: the impulsive nature of the worker’s conduct; the comments were made while the worker was alone, on break, and outside the facility, causing no disruption of the work environment or the relationship with customers; the worker encouraged others to vote for the union; the widespread and generally tolerated use of profanity in the workplace; and the referenced company policies did not prohibit the use of offensive or vulgar language.

    Lessons Learned: Employers must be careful when considering discipline for workers’ social media activity. Conduct that appears outrageous may still be protected under the Act, if there is even a tangential connection with union activity or terms and conditions of employment.