Why it matters

An employer that terminated a worker after he posted profane and vulgar comments about a supervisor on Facebook violated the National Labor Relations Act (NLRA), a three-member panel of the National Labor Relations Board (NLRB) determined, with one member filing a dissent. Feeling that he had been addressed in a disrespectful manner, an employee at a catering business called his supervisor a “nasty mother f*#@!r” on Facebook, among other vulgar comments, some directed at the supervisor’s family. After being terminated for posting the comments in violation of company policy, the employee filed a complaint with the NLRB. Noting that vulgar language was rife in the workplace at issue and that such comments rarely resulted in discipline, the Board examined the comments in the context of an unhappy workforce that had recently presented a petition of complaints to management and scheduled an upcoming union election. Based on the totality of the circumstances, the panel found the comments constituted protected, concerted activity. In a dissenting opinion, one member bemoaned the majority’s tacit approval of such “vulgar and obscene” comments, writing that the post should have lost the Act’s protection. The decision continues the NLRB’s streak of siding with employees in disputes involving social media and serves as a reminder to employers to use caution when handling employee activity online.

Detailed discussion

Hernan Perez was a 13-year employee of Pier Sixty, a catering service company in New York. One night while working as a server at a fundraising event in Manhattan, a supervisor approached Perez and two other employees and instructed them to “Turn your head that way and stop chitchatting” in a loud voice. Later in the evening, the supervisor told them in a “raised, harsh tone” to “Spread out, move, move,” in a loud voice audible to the guests.

Upset at what he perceived to be rude treatment, Perez complained to his coworkers. One of them reminded him that an upcoming union election was just two days away and suggested he take a break. Perez did and used the time to make the following post to his Facebook page:

“Bob is such a NASTY MOTHER F*#@!R DON’T KNOW HOW TO TALK TO PEOPLE!!!! F*#k his mother and his entire f*#@!^g family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!”

One of Perez’s Facebook friends reported the post to the employer, and he was terminated shortly after based on his violation of company policy. Perez filed a complaint.

An administrative law judge found that Perez’s termination violated the NLRA because the post constituted protected, concerted activity. The employer appealed but a three-member panel of the NLRB affirmed in a split decision.

Using a totality of the circumstances analysis, the majority emphasized that “vulgar language is rife in the [employer’s] workplace, among managers and employees alike,” citing several examples of profane exchanges that did not result in disciplinary action.

The Board also said that the catering service company was facing general unhappiness from its staff. A number of employees had expressed interest in union representation, “in part because of concerns that management repeatedly treated them disrespectfully and in an undignified manner.” After employees presented management with a petition listing complaints—including specifically identifying the supervisor at issue as having treated employees disrespectfully—an election had been scheduled.

“Perez clearly found [the supervisor’s] commands disrespectful and posted his Facebook comments in response to [the] remarks,” the majority wrote, and his “impulsive reaction” to the commands “reflected his exasperated frustration and stress after months of concertedly protesting disrespectful treatment by managers—activity protected by the Act.”

The Facebook post protested such mistreatment and also “exhorted employees to ‘Vote YES for the UNION,’ ” the NLRB added.

While the decision acknowledged the remarks were “distasteful,” the employer “tolerated the widespread use of profanity in the workplace, including the words ‘f*#k’ and ‘motherf*#@!r,’ ” the Board said. “Considered in this setting, Perez’s use of those words in his Facebook post would not cause him to lose the protection of the Act. Nor was Perez’s reference to [the supervisor’s] family beyond the Act’s protection. We agree with [the ALJ] that Perez’s comments were not a slur against [the supervisor’s] family but, rather, ‘an epithet directed to [the supervisor] himself.’ ”

Perez’s use of profanity was not qualitatively different from profanity regularly tolerated by the employer, the majority wrote, with only five written warnings issued to employees since 2005 based on obscene language and no evidence that discharge had ever occurred.

The Board affirmed that the employer violated Section 8(a)(1) and (3) of the NLRA, ordering the employer to reinstate Perez and make him whole for any lost wages, as well as cease and desist from future violations of the Act.

A dissenting member of the panel said the majority “recast an outrageous, individualized griping episode as protected activity,” refusing to conclude that “such blatantly uncivil and opprobrious behavior is within the Act’s protection.” The Facebook post was “qualitatively different” from the obscenity tolerated by the employer in the workplace, according to the dissent, and the post was far from impulsive—“Perez put in the time, thought, and coordination necessary to use capitalization and punctuation,” after taking a 10-minute break and accessing his Facebook account.

To read the decision and order in Pier Sixty, LLC, click here.