Monday, June 1, 2015

NLRB Again Finds Facebook Cursing About Supervisor Is OK

It seems to be open season on supervisors. Recently the NLRB is has issued one decision after another finding that employees’ vulgar postings about their supervisors is protected speech.  Take the case of Pier Sixty LLC v. Perez and Gonzalez.  

Perez was an employee of the catering company, Pier Sixty.  Employees had long complained that supervisors and management were disrespectful towards employees, with this being one of the reasons that employees petitioned for union representation.  Two days before the union election, Perez was working a catering event. His supervisor, Robert McSweeney approached him and other employees during the event with direction to “stop chitchatting and face the guests” and “spread out, spread out”. While the case references testimony that McSweeney spoke in a harsh tone at that event, it is devoid of evidence that he was cursing that night.

Perez, upset by the supervisor’s tone, and undoubtedly fueled by past circumstances and the upcoming election, posted the following statement on his Facebook page during a work break:

Bob is a nasty mother f***** don’t know how to talk to people. F*** his mother and entire f****** family.  What a LOSER!!! Vote yes for the UNION.  

Several employees saw the post, as did members of management, although Perez took the post down two days later. You can probably guess that the company fired Perez for the vulgar post.

It should also be no surprise by now that the NLRB found that Perez’s post was protected concerted activity. While the result may seem disheartening to employers, a close reading  of the decision reveals facts upon which the agency relied in reaching its decision that may not exist in most workplaces.

The NLRB analyzed Perez’s claims based on the totality of the circumstances test which incorporates a number of factors such as when and where the employee made the offensive statements, whether the employee was provoked or whether the statement was impulsive or deliberate, past practice of the employer in disciplining employees for like statements and the employer’s policies and practices. As egregious as the statement was, the employer had a few chinks in its armor as well. 

First of all, the statement was posted  two days before a union election and it contained the sentence “Vote yes for the Union.”  This is not to conclude that every vulgar statement will be protected activity if an employee just includes a statement about their union, but in this case there was, in fact, a union election two days hence.

Additionally, while the company claimed that it fired Perez for violating company policy, it failed to produce or identify the specific policy on which it relied. Finally, and maybe most importantly, evidence in the case revealed that cursing was commonly accepted in the workplace among all levels of employees, including what appears to be liberal use of  the “f” word.  

Employers should take note that before disciplining or discharging an employee for complaining about the workplace or a supervisor using offensive language on social media or away from the workplace, measure the seriousness of the conduct against other accepted language in the workplace as well as against policies. This is especially true if the nature of the complaint is common to other employees as it was with Perez.

Offensive social media posts and other statements by employees, especially when directed at a particular member of management,  require thorough analysis before issuing discipline.  The NLRB ordered Pier Sixty to reinstate Mr. Perez in this case. Often if an employer consults with an experienced labor and employment attorney before taking action, a better result can be achieved.