NLRB protects vulgar workplace Facebook rant, reinstates fired employee

April 06, 2015

Employment Law Alert

Author(s): Stephanie M. Caffera

The NLRB rules that obscenities directed toward managers on social media may be protected under the National Labor Relations Act. This alert discusses precautions that employers should take in light of this ruling.

The Facebook wars continue at the National Labor Relations Board. In November we reported on a case in which the NLRB upheld the discharge of two employees who engaged in an expletive-laden exchange on Facebook about their plans to disrupt the workplace and flaunt employer policies and procedures.[1] Now a three-member panel of the NLRB has held that an employee who was fired after calling his manager a “nasty mother f***er” on Facebook did not lose the protection of the National Labor Relations Act and had to be reinstated to his job. Pier Sixty LLC, 362 NLRB No. 59 (March 31, 2015).

In making its ruling, the NLRB panel applied a “totality of the circumstances” test, which the Board first articulated in Triple Play Sports Bar & Grille (2014). The Triple Play case currently is on appeal to the U.S. Court of Appeals for the Second Circuit (New York). Using the Triple Play test, the panel found that the employee’s comment was legally protected, despite profanity directed to the manager and the manager’s family. The case offers a cautionary tale for employers and demonstrates the near-impossibility, under the current Board standards, of imposing workplace rules seeking to maintain basic respect and decorum.

The facts

Pier Sixty LLC is a catering company in New York City. The servers at Pier Sixty had started a union organizing campaign in 2011. Disrespectful treatment by management was one of the main drivers of the union campaign. Employees voiced verbal complaints to management and eventually presented a petition to the Director of Banquet Services listing various grievances, including complaints that Pier Sixty’s managers “take their job frustration [out on] staff” and “don’t treat the staff with respect.” The petition identified Assistant Director of Banquets Robert McSweeney as one of the managers who treated them disrespectfully.

Pier Sixty opposed the union organizing campaign and in some instances took a heavy-handed approach, including enforcing a “no talking” rule on employees who were discussing the union and employee grievances but not on those who were discussing other personal matters.

On October 25, 2011—two days before the scheduled union election—Pier Sixty was catering a fundraising event at its facility. McSweeney directed a group of servers to attend to customers; pointing to arriving guests, McSweeney told servers, in a “loud voice,” to “Turn your head that way and stop chitchatting.” (The servers denied they were talking.) Later in the same event, while the servers were waiting for a signal from the captain to clear the appetizer plates, McSweeney “rushed up” to a group of servers and told them to “Spread out, move, move,” using a “raised, harsh tone” audible to guests.

Long-time employee Hernan Perez was upset by McSweeney’s comments. He complained to co-worker Evelyn Gonzalez, the leader of the union organizing effort, that he was “sick and tired of this” and that McSweeney did not know how to talk to employees. He said he was going to confront McSweeney. Gonzalez urged him to wait for the union election (only two days away) and to take a break to calm down. Perez followed Gonzalez’s advice, returning to the floor to get permission to take a break and then going first to the bathroom and then outside. Once outside, he used his IPhone to post a message to his Facebook page:

Bob is such a NASTY MOTHER F***ER” don’t know how to talk to people!!!!! F**k his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!!!

A co-worker who saw the post informed management, and the Human Resources Manager investigated. Perez initially lied during the interview, claiming the posting had not been about McSweeney, but later admitted McSweeney was the “Bob” he was referring to. Pier Sixty ultimately fired Perez for harassment two weeks after the posting. The Human Resources Manager told him his Facebook comments had violated company policy, that they were egregious and inappropriate, disrespectful and potentially defamatory. She also cited the fact that Perez had not taken the posting down right away.

The NLRB’s analysis

NLRB Chairman Mark Gaston Pearce and newest Board member Lauren McFerran found that Perez’s comments were not egregious enough to lose the protection of the Act, partly because “vulgar language is rife in [Pier Sixty]’s workplace, among managers and employee alike.”

The Board panel easily found that Perez’s Facebook post was part of a sequence of events of employees protesting rude and demanding treatment by Pier Sixty managers, including McSweeney. Perez’s Facebook post asserted “mistreatment of employees” and sought “redress through the upcoming union election.” Therefore, it constituted protected concerted activity and union activity, both of which are protected under the National Labor Relations Act.

The question for the panel was whether Perez’s conduct was so egregious as to cause him to lose the protection of the Act. The Board’s precedents allow considerable leeway for employees engaged in concerted activity. The use of profanity can be protected in certain circumstances, even if directed to a supervisor.

In finding that Perez’s comments were not so egregious as to cause him to lose legal protection, the Board panel considered the following factors under Triple Play:

  • Whether the record contained evidence of antiunion hostility on the part of the employer;
  • Whether the employer provoked Perez’s conduct;
  • Whether Perez’s conduct was impulsive or deliberate;
  • The location of Perez’s Facebook post;
  • The subject matter of the post;
  • The nature of the post;
  • Whether the employer considered language similar to that used by Perez to be offensive;
  • Whether the employer maintained a specific rule prohibiting the language used; and
  • Whether the discipline imposed on Perez was typical of that imposed for similar violations or was disproportionate to his offense.

The panel majority concluded that “an objective review of the evidence under the foregoing factors establishes that none of them weighs in favor of finding that Perez’[s] comments were so egregious as to take them outside the protection of the Act.” The two-member majority made the following conclusions:

  • The employer had engaged in multiple unfair labor practices in the weeks leading up to the election.
  • Perez posted his comments in response to McSweeney’s remarks, which he found offensive. The panel considered this to be “provocation,” even though they found McSweeney’s comments were not an unfair labor practice.
  • Despite the time that elapsed between McSweeney’s second comment and Perez’s Facebook post, the panel found Perez’s comments to be an “impulsive reaction . . . to McSweeney’s commands” and “reflected his exasperated frustration and stress after months of concertedly protesting distrustful treatment by managers.”
  • Perez made the post alone, on break, outside the employer’s facility.
  • There is no evidence Perez’s comments interrupted the work environment or the employer’s relationship with his customers. The subject matter reflected employees’ previous complaints about management’s treatment of employees and encouraged employees to vote for the union.
  • Perez’s references to McSweeney’s mother and family were not enough to cause him to lose legal protection: the panel majority concluded that Perez’s comments “were not a slur against McSweeney’s family but, rather, an epithet directed to McSweeney himself.”
  • The employer “tolerated the widespread use of profanity in the workplace, including the words ‘f**k’ and ‘motherf***er.’” The panel did not find those other uses of profanity to be qualitatively different from Perez’s use of similar language. Therefore, in this context, his use of the words was not enough to cause him to lose the protection of the Act.
  • The employer cited its Other Forms of Harassment policy as the basis for discharging Perez; however, this policy did not prohibit “vulgar or offensive language in general.” Nor did the employer claim that Perez’s comments were directed to any protected classification, such as was prohibited by the policy. The employer had never discharged an employee solely for the use of language. The panel majority declined to find that Perez’s comments, by their nature, constituted insubordination.

Member Harry Johnson partially dissented, arguing strongly that Perez should have lost legal protection due to the nature of his comments:

In condoning Perez’[s] offensive online rant, which was fraught with insulting and obscene vulgarities directed toward his manager and his manager’s mother and family, my colleagues recast an outrageous, individualized griping episode as protected activity. I cannot join in concluding that such blatantly uncivil and opprobrious behavior is within the Act’s protection.

Noting that Perez’s use of profanity went beyond the more “casual” references tolerated in the workplace (“Are you guys f***ing stupid?”; “Why are you f***ing guys slow?”), Member Johnson also pointed out that none of the examples of workplace profanity offered in evidence referred to the targeted person’s family members, as Perez[’s] did: “I cannot believe that Perez’[s] profane, personally-directed tirade, going after his supervisor and his supervisor’s mother and family, was what the drafters of the Act intended to protect.”

Member Johnson also took issue with the majority’s characterization of Perez’s actions as “impulsive.”

Although the Act permits some leeway in accommodating impulsive statements in the context of labor disputes, here, there is no indication that Perez’s “impulsive” action was influenced by the labor dispute, as opposed to being simply either his choice not to control himself or his inability to do so. Although the record does not fully establish how much time passed, it was certainly more than a few minutes. Perez returned to work, spoke to Gonzalez, asked for permission to take a break, took a 5 to 10 minute bathroom break, and only then, went outside the facility, accessed his Facebook account and typed the message. In typing the message, Perez put in the time, thought, and coordination necessary to use capitalization and punctuation. In my view, Perez engaged in a deliberate (albeit hot-headed) act, not the kind of impulsivity the Board sometimes excuses during a vibrant, heated labor discourse. Moreover, Perez left the posting on Facebook for 3 days, further demonstrating his purposefulness. Even if the initial posting could be considered impulsive under the circumstances, maintaining it over time was not.

Over Member Johnson’s dissent, the two-member majority ordered, among other remedies, that Perez be reinstated to the same or substantially equivalent position, “without prejudice to his seniority or any other rights and privileges previously enjoyed,” and that he be made whole for any loss of earnings and other benefits (less any earnings from other positions in the interim), plus interest compounded daily.

Lessons for employers

The Pier Sixty case contains a number of cautions for employers. Among them are:

  • A reminder that disrespectful, degrading treatment of employees by their immediate supervisor is one of the most common reasons employees seek to organize a union. Especially with the new “ambush” election rules about to take effect April 14, employers should not delay in addressing “problem supervisors.”
  • Pier Sixty tolerated vulgarity and derogatory comments in the workplace, including degrading statements from managers to employees. This conduct not only fueled the organizing drive, it made it nearly impossible for the employer to discipline Perez for his use of language similar to that regularly used in the workplace, including by supervisors.
  • The Board’s “protected concerted activity” decisions require employers to tolerate much more “disrespectful” and “inappropriate” language than they would expect they’d have to. Human Resources leaders should keep these federal standards in mind and consult with legal counsel before disciplining or terminating employees for their use of such language.
  • The Board will construe both employer “provocation” and employee “impulsiveness” much more broadly than employers would expect. The “one bad supervisor” may create a legal environment that essentially condones an outburst from an employee and may prevent the employer from taking disciplinary action.
  • Employers should seek legal review of their non-harassment, social media, confidentiality, workplace conduct, and other policies—especially if they haven’t been reviewed in the last two years. The Board will find an unfair labor practice if an employer simply maintains an “overbroad” policy, even if it’s not enforced.

  1. See Nixon Peabody Alert: “National Labor Relations Board okays a “Facebook firing,”” available below.
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