Is Dismissing a Union Supporter for Facebook Comments Illegal?

A recent decision of the B.C. Labour Relations Board considered whether an employer can dismiss employees for comments made on Facebook.  Two employees of West Coast  Mazda who had been actively involved in organizing a union were dismissed shortly after the union was certified.  The employer alleged the dismissals were for derogatory comments made on Facebook about the employer and its managers.  The Union filed  a complaint with the Labour Board arguing that the employer was motivated by anti-union animus–in other words, part of the reason the employer decided to dismiss the employees was to remove union supporters from the workplace.
The B.C. Board ruled in favour of the Employer.  Here’s the decision.
As we noted recently with respect to the NHL referee case, labour laws prevent employers from dismissing employees because the employees are union supporters or activists, but these laws do not prevent employers from dismissing union supporters for other legitimate business reasons.  Labour boards must figure out whether “anti-union animus” played any role in the decision to dismiss.
Here, the B.C. Board Vice-Chair (my old colleague, actually, Alison Matacheski) ruled that the employer was responding to vulgar attacks made on Facebook by the employees targeting the business and management.  The Facebook comments included things like:  the employer is a F-in joke, don’t spend your money there as they are f-in crooks out to hose you..  they are a bunch of greedy low life scumbags …   two managers were in the toilet fondling each other ..
Are you kidding me?  Did these guys think you can post that crap about your employer on a public website without repercussions?   He alleged publicly that the employer is a crook so people shouldn’t shop there.  There is a term in every employment contract that employees will act in the furtherance of the employer’s economic interests.  You can’t try to drive customers away by scandalous allegations.  If you believe that your Facebook postings are somehow “private” and therefore you can say whatever you like, think again.  There appears to be no expectation of privacy on a public website.  In this case, the employees knew that some managers were linked to the Facebook page and would see the comments.  Do you think that it would be different if the comments were made on a closed Facebook page–i.e., one in which only carefully selected ‘friends’ are able to read the posts?  Is this closer to a private discussion people might have that is none of the employer’s business?
The Board said:  “displaying opinions about work related issues may have consequences within the employment relationship.”   Moreover, employees can commit insubordination through social media, even when they make their comments outside of working hours and on their own computers.
The union did not argue that the comments were acceptable.  Instead, it argued that the fact that the employer only started monitoring the Facebook page on the very day it learned of the union’s application for certification showed that the employer’s real motive was to remove a union supporter.  The Board conceded that the timing of the monitoring of the Facebook page was suspicious.  However, the Board accepts the employer’s assertion that it just happened that this was when an employee informed the employer of escalating hostility in the posting.  The employer then monitored the posting for a while before it finally decided that the employee had crossed the line.
Do you think that what employees say on Facebook or Twitter should be none of the employer’s business?