The Second Circuit Court of Appeals stepped in to support the NLRB’s finding that an employee’s profanity-ridden social media posting about his employer (and his employer’s mother) was not so offensive that it went beyond the protections of the NLRA for union-related activity. This decision again shows the wide latitude given to employees to engage in what in the past may have been considered insubordination.
The defendant, Pier Sixty, is a catering company. Around the time of the incident, its employees were engaged in a union organizing campaign. Mr. Hernan Perez, a server, felt that his supervisor, Robert McSweeney, had spoken to him and some other servers fairly harshly about their work. On his next break, Mr. Perez used his phone to post a charming message on his own Facebook page. The message called his supervisor a “nasty mother f*****” and went on to say “F*** his mother and his entire f***ing family” (although Mr. Perez substituted the real letters in his words instead of asterisks—this is a family-friendly blog). He ended the message with “Vote YES for the UNION!!!!!!” The post was publicly accessible, and Pier Sixty learned about it. Subsequently, Mr. Perez was fired.
Mr. Perez and the union filed unfair labor practice charges with the NLRB claiming he had been terminated for protected concerted activities. An administrative law judge found in favor of Mr. Perez, and a panel of the NLRB affirmed that decision. Pier Sixty appealed to the Second Circuit.
What the Second Circuit Said.
Pier Sixty initially argued that the NLRB decision was not valid due to the recent finding that the NLRB’s acting general counsel, Lafe Solomon, served in violation of federal law (see our related blog post). The Second Circuit dismissed this argument by finding that the defendant failed to raise that defense at the NLRB panel stage and therefore waived that argument.
The court then turned to the substance of Mr. Perez’s post and whether it should be protected. The opinion recognized that there are situations where an employee engaged in potentially protected activity under the NLRA may act in such an abusive manner that he or she loses the protection of the act. The court held that the proper standard to be used in evaluating the comments should be the “totality of the circumstances” test found in recent social media cases.
Under that standard, the court first stated that although the message was “dominated by vulgar attacks” on the supervisor and his family, the subject matter of the message included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before” the union election. Second, the court found that the employer consistently tolerated profanity among its workers. Specifically, the employer had not previously disciplined employees for using the “f word” and other expletives and racial slurs. There was no evidence that Pier Sixty had ever discharged an employee solely for the use of offensive language. The court found that it was reasonable for the administrative judge to decide that Mr. Perez’s comments “were not a slur against [the supervisor’s] family, but rather, an epithet directed to [the supervisor] himself.” The court also found it significant that although no server had ever been fired for profanity before, Mr. Perez was fired only two days before the union election.
Finally, the court held that because the comments were on Facebook, it was not an outburst in the immediate presence of customers and did not disrupt any catering event. The court noted that social media is “a key medium of communication among coworkers and a tool for organization in the modern era.” The opinion also found significant that Mr. Perez mistakenly thought his Facebook page was private and took down the post three days later when he learned the public could see it. In conclusion, the Second Circuit ruled that the NLRB was not in error in finding that Mr. Perez’s post, although “vulgar and inappropriate,” was not so egregious as to not be protected under the NLRA.
Does this open the floodgates for cussing out supervisors?
Admittedly, the facts of this case would have most of the public feeling that Mr. Perez’s profanity-filled post should have gotten him fired. However, this opinion seems to show that the courts are becoming more tolerant of what, in the past, would have been considered offensive language. Part of the problem here was that the employer did not enforce any rules against profanity in its own workplace. If you don’t want your employees cussing, be sure to discipline them for doing so—especially if it is in front of customers. Another lesson from this case appears to be that the NLRB and some courts are taking the stance that social media posts are the equivalent of a worker standing on a box holding up a sign saying “union”—and that those comments, even if vulgar and insubordinate, will be allowed some protection. It looks like we may be in for some fairly interesting cases in the future—ones that may have to be edited for tender ears.