Recently, the National Labor Relations Board (Board) issued another decision protecting use of profanity by an employee at, or related to, work. The newest case is an example of particularly nasty language, disseminated widely via Facebook, but found by the Board to be protected concerted activity under the National Labor Relations Act (Act). The case is Pier Sixty, 362 N.LRB No. 59, issued March 31, 2015.
The events took place 2 days before an election to determine if the employees would select a union to represent them. An employee, Perez, feeling disrespected by behavior of a supervisor who was unpopular with many employees, initially expressed his anger to the lead in-house union organizer. The organizer advised him to take a break and calm down. Perez took a break, but apparently did not calm down. A short while later, while outside the facility, Perez used his cell phone to post a message to Facebook stating:
Bob [the supervisor] is such a Nasty M***** F***** don't know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
The Facebook post was discovered and brought to the attention of Company management, and Perez was fired. The Union, which had won the election, filed an unfair labor practice charge with the Board protesting Perez' termination.
The Board and its Administrative Law Judge went through a long analysis, but concluded that Perez' post constituted protected concerted activity under the Act and ordered his reinstatement with full back pay (3½ years' pay—Perez was terminated in November, 2011).
The Board decision was not unanimous—at least there was a dissenting opinion—but the Pier Sixty case still typifies a recent trend in which employees engage in angry, vulgar outbursts about their work places and/or supervisors and are ultimately not held accountable for those egregious breaches of workplace discipline. The precedents relied on by the Board majority go far back; the lead case, Atlantic City Steel, was decided in 1979. Many of those prior cases (Plaza Auto Center, 2010; Tampa Tribune, 2007; Burle Industries, 1991) involved an employee's use of the f-word directed angrily at an owner or supervisor, and as in Pier Sixty, found it to be protected concerted activity. Importantly, note that that while the Pier Sixty case arose in the course of a formal union campaign for an election, the Act's safeguarding of protected concerted activity also extends to non-union workplaces when no formal election campaign is under way.
Despite the longstanding tolerance of "robust debate" regarding the rough-and-tumble of labor-management relationships represented by many case decisions going back decades, it is difficult to imagine that the people who wrote the Act eighty years ago intended to protect such behavior and speech.
However, a potential message to employers is that "context matters." In Pier Sixty, the Board's Administrative Law Judge (ALJ) devoted nearly a full page of the opinion to reciting a litany of outbursts in which the f-word, s-word and a-hole-word were used in the workplace by managers and supervisors directed at employees to criticize employee performance or attitude. That caused the ALJ to note that at least at Pier Sixty, the employees were accustomed to the supervisors and managers routinely addressing such language to them; it allowed the ALJ to find that the employer was not legitimately concerned with the vulgarity, but more concerned that the Facebook post by Perez ended with the exhortation to "Vote YES for the Union!"
While decrying the trend of Board decisions finding profane and vulgar outbursts by employees to be protected, employers should also remember that "people who live in glass houses should not throw stones." Employers that foster a culture of mutual respect and civility in the workplace may have a better shot at dealing effectively with the employee who breaches that culture; such employers may at least defend themselves from the moral high ground.
Employers would be well-advised to pay attention to how their managers and supervisors treat employees. It is good business and may provide an opportunity to defend against claims such as the ones made in the Pier Sixty case.