Can an employee post a vicious and profane rant against his manager and his manager's family on Facebook -- during a union organizing campaign -- and be protected from discipline? Yes, according to the NLRB in a decision issued on March 31, 2015, ordering the employer to reinstate the employee with back pay.
The employee's Facebook post stated in part:
"[My manager] is such a NASTY M***** F***er" ... F*** his mother and his entire f***ing family!!!! What a loser!!!! Vote YES for the UNION!!!!!!!!"
Although the NLRB majority asserted that its conclusion that the posting was protected activity under federal labor law was in accordance with existing precedent, NLRB Member Johnson issued a dissent strongly disagreeing on that point. As Member Johnson explained, although on some occasions intemperate conduct or use of profanity may be protected, in this case, the "offensive online rant, which was fraught with insulting and obscene vulgarities directed toward his manager and his manager's mother and family," was far outside the boundaries of protected speech and prior precedent, and was simply a "vicious attack" on the manager's family that should enjoy the status of protected, concerted activity.
For employers, the lesson is that, especially during a union organizing campaign, proceed with caution in issuing discipline, particularly where the context suggests the incident is intertwined with union organizational activity.
--Jonathan Nadler
--Jon Nadler, Eckert Seamans, Philadelphia
