The National Labor Relations Board (NLRB) recently upheld an administrative judge’s finding that firing a union employee who criticized his boss and his boss’s family on Facebook violates Section 8(a)(3) and (1) of the National Labor Relations Act.

For several months, catering employees of Pier Sixty LLC had shared complaints of disrespectful management treatment with the banquet supervisor. They eventually asked the NLRB to conduct a union election. Two days before the election, while working at a catered event, an employee who was serving cocktails and two co-workers were told by their supervisor to “Turn your heads [to the guests] and stop chitchatting. . . Spread out, move, move,” saying this “in a raised, harsh tone,” according to the NLRB decision. The server told a coworker who was the head of the organizing effort that he was “sick and tired of this.” During his break, the server used his iPhone to post an explicit, defaming message about his boss on his personal Facebook page.

The employee deleted the post the day after the election, but not before some of his coworkers and other Facebook “friends” saw it. The employee was fired 15 days later on grounds that his Facebook comments “violated company policy.” The NLRB held that the employee’s Facebook comments “constituted protected, concerted activity and union activity” protected under the National Labor Relations Act.

The referenced case is Pier Sixty LLC and Hernan Perez and Evelyn Gonzalez, 362 NLRB No. 59 (NLRB Case Nos. 02-CA-068612 and 02-CA-070797). A copy of the NLRB’s 2-1 decision and order is available here.