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F-word Facebook Post Insulting Boss’s Mother Is Protected Activity

Thu June 1, 2017 Publications

The U.S. Second Circuit Court of Appeals recently affirmed a National Labor Relations Board’s (“NLRB”) decision finding an employer had violated the National Labor Relations Act (“NLRA”) by terminating an employee for a Facebook post insulting his boss’ mother and encouraging employees to vote for the union.

Pier Sixty, LLC, a catering company in New York City, and its employees experienced a “tense [union] organizing campaign that included threats from management that employees could be penalized or discharged for union activities.” During this time, one of its managers, Bob McSweeney, used a “harsh tone” in directing employees which was viewed as part of management’s ongoing contempt for its employees. Worker Hernan Perez was offended. Forty five minutes later, during an authorized break, Perez posted the following insult on Facebook (four-letter words edited by me):

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

Perez knew his post was viewable by his Facebook friends including ten coworkers. It was also publicly accessible though he may not have known that.

When Perez was fired for the post, he filed a charge with the NLRB alleging he had been terminated for protected, concerted activities. The NLRA generally prohibits employers from retaliating against employees for protected, concerted activities like those that are union-related or for other mutual aid or protection.

The question was whether Perez’s post was so opprobrious as to lose protection. Applying its nine factor totality of the circumstances test, the NLRB considered: “(1) any evidence of antiunion hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the conduct; (7) wether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense.” The NLRB found the termination was found unlawful and Perez was ordered reinstated.

Pier Sixty appealed to the Second Circuit which affirmed, recognizing that the NLRB is the expert at determining which activities fall within this protection. The Second Circuit noted three points in particular. One, the “vulgar attacks on McSweeney and his family” included workplace concerns.” Two, “Pier Sixty consistently tolerated daily profanity, including use of the words “f___” and “motherf___er” and other expletives and racial slurs, among its workers including by management employees and McSweeney. And, three, the location was social media which is a “tool for organization in the modern era.”

While this decision was fact-specific and viewed by the court as the “the outer-bounds of protected, union-related comments,” employers should be cautious and seek legal counsel when disciplining employees for social media posts, especially criticisms of the workplace.