In an earlier post, I wrote about the NLRB’s most recent social media decision. In that case, the NLRB held that Triple Play Sports Bar and Grille’s termination of two employees for their participation in a profanity-laced Facebook discussion about Triple Play’s owners violated the employees’ right to engage in “protected, concerted” activity under the National Labor Relations Act (NLRA). Triple Play has now filed an appeal with the U.S. Court of Appeals for the Second Circuit.
The NLRB held that one employee’s Facebook “Like” and the other employee’s vulgar comment (referring to the owner as an “a**hole”) were protected, concerted activity under the NLRA. The NLRB brushed aside Triple Play’s argument that the two employees’ activity had lost the protection of the NLRA because the employees had adopted disparaging, profane comments made by other participants in the Facebook discussion.
The NLRB’s decision in the Triple Play case is part of an unfortunate trend in which the NLRB has taken an expansive view on what’s protected by the NLRA when it comes to employees engaging in insulting or profane conduct, even when that conduct reeks of insubordination. For instance, just this year, the NLRB has also held:
- A California Hooters franchise had improperly fired an employee who had cursed at a co-employee in front of restaurant guests after the employee claimed that the co-employee had rigged a bikini contest held at the restaurant;
- An Arizona automobile dealership had violated the NLRA when it terminated an employee who had cursed out the dealership’s owner and called him “stupid” in a meeting to discuss compensation; and
- Starbucks had improperly discharged an employee who had directed profanity at a manager who he felt was not providing adequate assistance, including making a comment to the manager to “do everything your damn self.”
Triple Play’s appeal is important because this will be the first opportunity for an appellate court to provide guidance on how the NLRA applies in the new social media context. The NLRB’s recent decisions clearly have made it more difficult for employers to enforce reasonable policies prohibiting insubordination and other employee conduct long considered improper. While it’s impossible to predict how the appeal will turn out, the Second Circuit could use the case to place some limitations on the NLRB’s expansive view about how far employees can go without losing the protection of the NLRA.
Or at least that’s the hope.