The post was visible to his friends, including co-workers.
Mr. Perez deleted the post three days later, which was one day after the union election. But by then management learned about the post and had made a photocopy of it. Mr. Perez was fired because the post violated company policy.
Recently, the National Labor Relations Board concluded that the Facebook rant of Mr. Perez was protected concerted activity. The Board further held that the post was not so egregious as to remove it from protection of the National Labor Relations Act. In reaching this decision, the Board examined the following factors: (1) whether there was evidence of anti-union hostility; (2) whether the employer provoked the employee’s conduct; (3) whether the employee’s conduct was impulsive or deliberate; (4) the location of the Facebook post; (5) the subject matter of the post; (6) the nature of the post; (7) whether the employer considered language similar to that used by the employee to be offensive; (8) whether the employer maintained a specific rule prohibiting the language; and (9) whether the discipline imposed was typical of that imposed for similar violations or whether it was disproportionate to the offense.
The employer in this case was not angelic. Nevertheless, the behavior that upset Mr. Perez – an assistant manager using a loud voice to tell employees to quit talking among themselves and to spread out – is hardly action that merits such a nasty response. (See the dissent.) Moreover, cursing the entire family seems to be over the top, and in many cases, would cause HR professionals to genuinely worry about workplace safety.
Nevertheless, the Board protected Mr. Perez in his vile outburst. Read about it here. http://nlrb.gov/case/02-CA-068612