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In another edition of surprising National Labor Relations Board (NLRB) decisions, the NLRB ruled that a profanity-laced posting on Facebook about a manager and his family was protected, concerted activity and that the employer violated the law by discharging the employee who posted the message.
Three key factors in the board’s March 31, 2015, decision were that profanity was common on the worksite and usually went unpunished, the posting encouraged co-workers to vote for a union, and the post was just two days before a union election.
Hernan Perez, a server for Pier Sixty, a catering service company in Manhattan, N.Y., was infuriated by a manager saying loudly, “Turn your head that way and stop chitchatting,” while pointing to arriving guests. The manager also had said in a raised, harsh tone for the servers to “Spread out! Move! Move!”
Perez told Evelyn Gonzalez, who headed the employees’ organizing effort, that he was “sick and tired of this” disrespectful behavior and that he would talk to the manager. Noting that the union election was near, Gonzalez urged Perez to stay strong and take a break to calm down.
Perez took a break outside the catering company’s facility. There, he posted from his iPhone the following message on his Facebook page: “Bob 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!!!!!!!”
Perez’s post was visible to his Facebook friends, including 10 co-workers. He deleted the post the day after the election.
Not fast enough, though. On the day before the election, a co-worker notified the HR director about Perez’s comments. The HR director viewed the post on the co-worker’s office computer and printed out a copy. Following an investigation, Perez was discharged.
Post Was Protected
But the NLRB ruled that Perez’s post was protected, concerted activity, noting that testimony showed that vulgar language is “rife” in the caterer’s workplace among managers and employees alike. “While distasteful, the respondent tolerated the widespread use of profanity in the workplace, including the words Perez used,” 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.”
The board also noted that the harassment policy, which was cited as the basis for discharging Perez, “neither prohibits vulgar or offensive language in general, nor did the respondent allege that Perez’s Facebook comments were directed at any protected classification listed in that policy.”
Moreover, since 2005, the company had issued only five written warnings to employees who had used obscene language and there was no evidence that it had ever discharged any employee solely for the use of such language.
The board upheld an administrative law judge order calling for Perez’s reinstatement plus back pay for any lost wages.
Dissenting, board member Harry Johnson III said, “I find that Perez’s vulgar and obscene Facebook comments lost the act’s protection.”
Johnson added, “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.”
He said that the words Perez used “are qualitatively different from the use of obscenity that the respondent appears to have tolerated in this workplace,” as they were a slur against the supervisor and his family.
The HR director had found the invective against the supervisor’s family particularly offensive, and Johnson wrote that the HR director’s reaction was “perceptive, accurate and
objectively spot-on” [italics in the original].
In addition, Johnson noted that Perez’s remarks were “via Facebook to co-workers and nonemployee ‘friends,’ a broader audience than those employees and managers within earshot of the tolerated workplace profanity.” And Johnson agreed with the HR director that Perez’s profanity was “quite apart from expressing an expletive when you drop something on your foot or saying to someone, ‘What the hell are you doing?’
“Employers are entitled to expect that employees will coexist treating each other with some minimum level of common decency,” Johnson wrote. “It serves no discernible purpose for the board to stretch beyond reason to protect beyond-the-pale behavior that happens to overlap with protected activity.”
This decision is Pier Sixty LLC, 02-CA-068612 and 02-CA-070797, 362 NLRB No. 59 (2015).
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him
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