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Worker's Profane Post on Facebook is Protected Union Speech

By George Khoury, Esq. on April 25, 2017 12:56 PM

The Second Circuit Court of Appeals has upheld a National Labor Relations Board decision in favor of a wrongfully discharged employee. The story is making headlines due to the fact that the fired employee used a few choice phrases to describe his supervisor in a public Facebook post. Those choice phrases are of the type that most office workers would expect to result in immediate termination.

However, thanks to the laws prohibiting retaliation against employees engaged in pro-union activities, and the common sense of the NLRB and the court, the opprobrious comment qualified as protected pro-union speech. Though most of the Facebook post exclaimed profanities about this supervisor, there was a legitimate criticism and a call to action for people to vote to unionize. Thank goodness for this prolific employee that Facebook doesn't have a 140 character limit.

Common Courtesy

While the Second Circuit court indeed recognized that employers can terminate employees for opprobrious language, it explained (in other terms) that there are limits, exceptions, and a little thing called common courtesy.

The supervisor whom the foul language was directed at was quoted as making similarly awful, if not worse, statements directly to employees. Additionally, the court found that employee's statement, though foul, was directly related to union activity. Further, the organization had never even disciplined, let alone fired, anyone over foul language before. These facts coupled with the suspect timing of the termination, two days before an employee election to unionize, led the court and NLRB to the determination that the termination was unlawful, union busting style, retaliation.

Union Busting Is Illegal

Under the National Labor Relations Act, employers that engage in "union busting" activities can find themselves facing fines, penalties, lawsuits and administrative enforcement actions. Generally, employees that attempt to form unions are protected from retaliation for their activities.

Employers do have some rights to prevent, or limit, speech in the workplace, while employees are on the clock. However, any actions that can be seen as union busting could incur the wrath of costly litigation.

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