WTF already?! As in, “where’s the fairness?” Time for an acronym update from our favorite government acronym, the NLRB.
You will certainly remember that we have recommended asking yourself three questions before determining whether the NLRB would have a problem with you disciplining one or more employees: First, did the employees engage in “concerted” activity? Second, if yes, was that concerted activity “protected” under the National Labor Relations Act? And third, if yes to the first two questions, did the otherwise protected concerted activity lose its protection under the Act because it was so offensive or reckless?
The vast majority of the NLRB’s decisions and guidance have focused on the first two questions. However, we are now starting to see the NLRB beginning to shape its position on the third question, and the parameters within which otherwise protected activity may still keep employees from success under the Act.
Which brings us to the Board’s latest decision in In re Pac Bell Tel. Co., where telephone technicians wore buttons and stickers that contained the phrases “WTF Where’s the Fairness,” “FTW Fight to Win,” and “Cut the Crap! Not My Healthcare.” The union argued that they had the right under the Act to wear such union insignia, while the employer contended that any such right was lost because the messages were vulgar and offensive.
The NLRB sided with the employees. It found that acronyms such as “WTF” and “FTW” did not stand alone, but were followed immediately by non-vulgar phrases that gave relatively innocuous meaning to the acronyms:
“We find that the possible suggestion of profanity, or ‘double entendre,’ . . . is not sufficient to render the buttons and stickers unprotected here, where an alternative, nonprofane, inoffensive interpretation is plainly visible and where, further, the buttons and stickers were not inherently inflammatory and did not impugn the Respondents’ business practices or product[.]”
“Cut the Crap,” or, as I often like to refer to it, “CTC,” was also deemed protected under the Act because the NLRB felt that “crap” had no “scatological content.”
Employer Take Away: What should you as an employer take away from this development?
Whether the speech is through social media, or on t-shirts, hats, or buttons, your company must still toe the line between permissible discipline and allowing speech that you might not generally like. As we’ve said in the past, there is going to be a high threshold before the NLRB will determine that protected concerted activity has lost its protection under the Act. Pac Bell teaches us that double entendre with a mere “suggestion of profanity” may not be enough, and that there will likely need to be a very clear (and sole) offensive statement expressly made.