What the *#@*???? NLRB Finds Employee’s Profane Rant Against His Company is Concerted, Protected Activity

---

Employees enjoy a lot of protections under the National Labor Relations Act (NLRA). In recent years, and particularly under a Democratic administration, the scope of these workplace protections has grown in leaps and bounds as broadened by multiple decisions by the National Labor Relations Board (NLRB). And in the last couple of years, these protections have crept slowly but surely into social media sites like Facebook.

Recently, the NLRB ruled that an employee who called his boss an obscene name and wrote a stream of other foul language should not have been fired and was entitled to reinstatement.

The employee’s workplace was undergoing a union campaign at the time and an election to certify the union was scheduled. A couple of days before the election, the employee was upset that his supervisor spoke to employees in what he deemed was a raised, harsh tone, telling them to “stop chitchatting” and cease congregating and move along.

In response, the employee let loose on his break, proclaiming on Facebook that his manager was a “NASTY M***** F*****…..f*** his mother and his entire f***ing family!!!! What a LOSER!!! Vote YES for the UNION!!!!!” The employer found out about the post and fired him shortly thereafter, and he filed an unfair labor practice charge against his former employer.

The administrative law judge (ALJ) hearing the charge found that because the workplace was full of foul language, the words on the Facebook post were commonplace, and were consistent with language that was a “daily occurrence” in the workplace and which typically did not result in a disciplinary response. The ALJ determined that the Facebook post was protected, concerted activity and that the employee’s termination violated the NLRA.

Not surprisingly, on appeal the NLRB affirmed the ALJ’s ruling.

The takeaway from this is that employees – even at non-union places of work – have the right under the NLRA to criticize their employer’s labor policies or treatment of staff. Employers should always proceed with caution when terminating an employee who complains about the terms and conditions of employment. It matters not that you do not currently have a union – non-union employees are also protected under this area of the law.

---

Posted In: Legal