The U.S. Court of Appeals for the Second Circuit recently enforced the NLRB panel majority decision in Pier Sixty, LLC, that an employer unlawfully discharged an employee for the “protected concerted activity” of cussing about a supervisor on Facebook two days before a union election. Among other things, the employee posted, “Bob [the supervisor] is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F**k his mother and entire f***ing family!!!!What a LOSER!!!! Vote YES for the UNION!!!!!!!” (Asterisks not in original.)

The Board, after adopting an ALJ’s factual findings, had applied a “totality of factors” standard to determine whether the conduct warranted protection under the National Labor Relations Act or was so “opprobrious” as to lose the Act’s protection. The Board majority found the outburst protected because generally, among other factors, the employer had tolerated such comments previously, the employee had not disrupted the event in front of customers, and the employer had, in the Board majority’s view, demonstrated hostility to the union that made the comments part of the campaign debate about management conduct.

On review, the Second Circuit, while not endorsing the “totality of circumstances” standard of the Board and acknowledging that the conduct at issue sat “at the outer bounds of protected, union-related comments,” gave deference to the Board’s interpretation of the Act and its finding that the conduct was not so opprobrious as to lose the protection of the Act. The court gave weight to the fact that the Board could have reasonably determined that the conduct was part of the campaign debate, that the employer had tolerated such conduct previously, and that Facebook was a key means for employee communications in organizing. The court also found that it was reasonable for the Board to determine that the employee had not done anything disruptive in front of customers.

Although these decisions may prompt amazement, if not outrage, from employers, the decisions should serve as a reminder of the importance of consistently enforcing rules with respect to employee misconduct and insubordination. The outcome might have been different if the employer had been able to prove that it consistently disciplined employees for foul-mouthed behavior. The decisions should also serve as a reminder that employee conduct during union organizing campaigns is often given special protected status by NLRB regional offices and Board members even though the NLRA has no language conferring special protected status. Thus, any discipline of employees during a union campaign has a heightened risk for employers.  That being said, a change in majority on the Board from Democrat to Republican should give employers a more level playing field.