"The NLRB prosecuted the employer for terminating an employee that engaged in activities protected by the National Labor Relations Act. Since the Act protects a broad range of commentary and behavior that many employers consider to be insubordination or even outright acts of disloyalty, it is prudent for business owners to become acquainted with how this law affects day-to day decision making.
The first case involves a New York based caterer, Pier Sixty. The NLRB ordered the company to reinstate an employee who it fired after discovering the following profanity laced Facebook tirade against his supervisor (profanity edited):
"Bob is such a NASTY MOTHER F don't know how to talk to people!!!! F his mother and his entire f** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!"
After the employee was fired, the employee filed charges against the company with the NLRB and won. The employee alleged that he had a federally protected right to say these things and both the NLRB and a federal reviewing court agreed. According to the NLRB, the termination was unlawful because the employee was fired for exercising his legally protected right to criticize his employer and urge co-workers to think the same way about the company. Both the NLRB and the reviewing court concluded that the post was nothing more than a lawful expression of the employee's feelings about the company and his supervisor, especially when the comment appeared during the run up to an NLRB supervised union election at the company. The court made short shrift of the employer's argument that the post went too far because of the profanity. According to the court, the "Facebook post, although vulgar and inappropriate, was not so egregious as to exceed the Act's protection."
In concluding that the obscene speech was protected (and that the employer violated the law when it terminated the employee for posting the filthy tirade), the reviewing Court relied upon the fact that: (1) the Facebook post addressed workplace concerns regarding treatment of employees and an upcoming union election; (2) the employer had a past tolerance of profanity in the workplace and did not terminate others for similar behavior; (3) the activity did not occur in the workplace, but on an online forum that did not impact customers or a catering event; and (4) the employee removed the post from Facebook shortly after learning that the post was publicly accessible. "