Think you can fire an employee for posting obscenities aimed at a supervisor? Think again. According to a recently published NLRB decision, an employer violated Section 8(a)(1) and (3) of the National Labor Relations Act by firing an employee for an obscenity-laced spiteful Facebook post directed towards a supervisor on the grounds that the employee’s post was — just wait — protected concerted activity. Generally, for a concerted activity to be protected, two or more employees must be acting together to improve wages or working conditions. However, as in the case below, the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.
The facts of the case are this: Two days before a scheduled union election (which was triggered by employees’ concerns relating to the way they were treated by management), a company supervisor allegedly made disrespectful remarks to three employees. According to reports, the supervisor told the employees, who were serving guests at a catered event, to turn their heads “toward the arriving guests and stop chitchatting” and later to “spread out, move, move” when he wanted them to clear the plates from the appetizer course.Details