Over the last several months, the National Labor Relations Board (NLRB) has issued a variety of controversial decisions related to its interpretation of what constitutes protected concerted activity under the National Labor Relations Act (Act). Specifically, the NLRB has found that employees have the right to shout profanities and direct obscene gestures at their employer if such behavior is in the course of engaging in what is otherwise protected concerted activity under the Act:

• Is Shouting Profanities Protected Under Federal Law?

• NLRB Finds That Employer Improperly Disciplined Employee Who Obscenely Grabbed His Crotch in Front of Female Co-Worker

• Shouting Profanities at Your Boss: Protected Concerted Conduct According to NLRB

In its recent decision in Pier Sixty LLC, the NLRB again found what many would consider to be outrageous conduct to be permissible under the Act.

In Pier Sixty, two days before a union election, an employee of a catering company called his manager on Facebook a “nasty mother f@#$%r, ” a “loser” and said “f@#k his mother and his entire f@#$%^g family.” The employee also stated: “Vote YES for the UNION.” The employee’s diatribe was prompted by what he saw as the disrespectful treatment of the catering company’s servers by the supervisor — who told the servers in a meeting in a “loud voice” to “stop chitchatting” and to “spread out, move, move.”

The NLRB found that the employee’s comments were not so egregious to lose protection under the Act.

Pier Sixty is yet the latest, and likely not the last, example of the current NLRB’s view on how far an employee can travel outside the bounds of common decency in the context of engaging in protected concerted activity. Consequently, if confronted with what otherwise appears to be outrageous employee behavior while engaging in protected concerted conduct, employers should contact counsel prior to taking adverse action against the employee. As difficult as it may be to believe, the current NLRB could very likely find that the employee’s behavior is protected by the Act.