You read that right. You need to think twice before firing an employee even if that employee calls a manager a “nasty mother f—–.”
A catering company violated the National Labor Relations Act when it fired a server who called his manager a “nasty mother f—–” on Facebook just two days before the company’s union election. The employee, supposedly unhappy about what he viewed as disrespectful treatment of servers, took a break from work and used his phone to launch a Facebook tirade against the manager calling him a “NASTY MOTHER F—–” and a “LOSER” and said “f— his mother and his entire f—ing family.” He wrapped up with “Vote YES for the UNION.”
The union won the election. The administrative law judge noted that the perceived hostile and degrading treatment from management was a driving concern that led to the election.
The Board ruled that the employee’s comments were not enough to lose protection under the NLRA and noted importantly that the company’s workplace was rife with vulgarity. The comments were in a non-work setting and were not made to a supervisor or manager, another factor that apparently swayed the Board to find the comments were protected. The administrative law judge added five factors to the traditional four-factor test in its analysis, but the Board used a totality of the circumstances approach.
This new approach is cause for concern as it is yet another sign of the Board’s growing unpredictability. Sometimes it’s hard to guess which laws apply these days.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.