NSFW Facebook Rant Was Awful, But Not Awful Enough to Justify Firing

In National Labor Relations Board v. Pier Sixty, LLC, the Second Circuit Court of Appeals considered how awful an employee’s conduct must be on Facebook before he or she loses the protection of the National Labor Relations Act (“NLRA“). In this particular case, in the middle of a union campaign, the employee reacted poorly to instructions from his manager and posted a profanity-laden tirade to Facebook which suggested–among other things–that his manager had carnal knowledge of his own mother. Specifically:

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Pier Sixty fired this employee, contending that the post was over the line. The employee filed an Unfair Labor Practice (“ULP“) charge with the NLRB, and the Board ruled that the employee’s speech constituted “protected concerted activity” under the NLRA because, on balance, it appeared to be an attempt to organize fellow employees related to the terms and conditions of their employment. It’s the “Vote YES for the UNION!!!!!!!” at the end of his post that caused the problem for Pier Sixty.

Before you conclude that an employee is now permitted to say literally anything they want on social media as long as they append a “Vote YES” to the end, the Second Circuit noted that “this case seems to us to sit at the outer‐bounds of protected, union‐related comments, and any test for evaluating ‘opprobrious conduct’ must be sufficiently sensitive to employers’ legitimate disciplinary interests, as we have previously cautioned.” It’s not clear what could be worse than the Facebook post in this case, but, as with so many employment issues, the factual background is highly relevant, and the employee’s Facebook comment cannot be viewed in a vacuum. As the Second Circuit found:

First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. Pier Sixty had demonstrated its hostility toward employees’ union activities in the period immediately prior to the representation election and proximate to Perez’s post. Pier Sixty had threatened to rescind benefits and/or fire employees who voted for unionization. It also had enforced a “no talk” rule on groups of employees, including Perez and Gonzalez, who were prevented by McSweeney from discussing the Union. Perez’s Facebook post explicitly protested mistreatment by management and exhorted employees to “Vote YES for the UNION.” Thus, the Board could reasonably determine that Perez’s outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.
Second, Pier Sixty consistently tolerated profanity among its workers. The ALJ found that Pier Sixty had not previously disciplined employees for widespread profanity in the workplace, including the words “fuck” and “motherfucker,” among other expletives and racial slurs. The Board relied on evidence that, in the context of daily obscenities, Pier Sixty only issued five written warnings to employees for such an offense in the six years prior to Perez’s discharge. And there was no evidence that Pier Sixty has ever discharged an employee solely for the use of offensive language. The ALJ specifically credited employee testimony that Chef DeMaiolo and McSweeney cursed at employees on a daily basis including screaming phrases such as “What the fuck are you doing?,” “Motherfucker,” and “Are you guys fucking stupid?” We recognize that one could draw a distinction between generalized scatology (or even cursing at someone), and, on the other hand, cursing someone’s mother and family. But one could reasonably decide, as the ALJ did in this case, that Perez’s comments “were not a slur against McSweeney’s family but, rather, an epithet directed to McSweeney himself.” Under the circumstances presented here, it is striking that Perez—who had been a server at Pier Sixty for thirteen years—was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity.

In other words, the company had routinely allowed similar profanity from its employees without ever firing one of them, and the ongoing union campaign was particularly nasty. Perhaps the outcome would have been different if Pier Sixty had actively cultivated a more civil environment with its policies, management, and discipline.

The take-away messages for employers in this case appear to be:

  1. If your company has a policy requiring employees to behave civilly and to protect the company’s good reputation, the policy needs to be enforced consistently, regardless of whether there is an ongoing union campaign;
  2. Managers should be held to the same civility standards as rank-and-file employees; and
  3. If your company finds itself in the middle of a union campaign or collective bargaining, the NLRB and the Courts are going to tolerate a great deal more “generalized scatology” from your employees than typical. This means that your company needs to be more clever with its discipline. Making a martyr of your employee will not help the company’s cause.

If you would like to discuss appropriate employee discipline, please feel free to call (470-839-9300) or email me.

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