On Tuesday, March 31, 2015, the NLRB issued an order upholding an ALJ decision that Pier Sixty LLC violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it terminated an employee who wrote on his Facebook page that his supervisor was a “NASTY M____ F____ER.”

According to the Board’s majority opinion, a number of service employees at Pier Sixty had expressed interest in union representation, in part because of concerns that management repeatedly treated them disrespectfully and in an undignified manner. Two days before the union election, a 13-year employee, who was working as a server at a fundraising event, got upset at what he perceived to be the supervisor’s disrespectful tone and comments towards the wait staff. He then took a break and posted the following message on his personal Facebook page:

Bob is such a NASTY MOTHER FUCKER don’t

know how to talk to people!!!!!! Fuck his mother and

his entire fucking family!!!! What a LOSER!!!! Vote

YES for the UNION!!!!!!!

The post was visible to the employee’s Facebook “friends,” which included some coworkers, and to others who visited his personal Facebook page. Perez deleted the post the day after the election. In evaluating the posting, the Board, consistent with the ALJ’s analysis, considered the following factors:

  1. whether the record contained any evidence of the employer’s antiunion hostility;
  2. whether the the employer provoked the employee’s conduct;
  3. whether the employee’s conduct was impulsive or deliberate;
  4. the location of the Facebook post;
  5. the subject matter of the post;
  6. the nature of the post;
  7. whether the employer considered language similar to that used by the employee to be offensive;
  8. whether the employer maintained a specific rule prohibiting the language at issue; and
  9. whether the discipline imposed upon the employee was typical of that imposed for similar violations or disproportionate to his offense.

Viewing the evidence objectively, the Board concluded that none of the factors weighed in favor of finding that the employee’s comments were so egregious as to take them outside the protection of the Act.

As the dissent illustrates, this is a decision that easily could have gone in the other direction were it not for alleged facts that swayed the Board majority in favor of protecting the Facebook post. For instance, the work environment was said to have been one that tolerated the use of profanity during work hours as demonstrated by the fact that nobody had previously been terminated for that behavior. In addition, the employer had allegedly also committed other unfair labor practices in the weeks leading up to the election. The majority also took into consideration that post was made to a private Facebook account during the employee’s break and appeared to have no disruptive effect on the work environment or customer relations.  Finally, the majority was swayed by the fact that the post was impulsive and was representative of the employees overarching concern about being treated with disrespect by management.

TAKEAWAY: These social media discipline cases continue to be difficult ones for employers to evaluate, but Pier Sixty demonstrates the importance of viewing the overall factual context in which the discipline decision is being made. Though an employer can hardly be faulted for wanting to terminate an employee who makes such vulgar references to a supervisor and his family, the heated election environment in which the decision needed to be made and the lack of prior terminations for similar conduct merited careful consideration before the termination decision was made.