Using Profanity on Social Media Can Be Protected Union-Related Speech

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An employee’s profanity-laced post on
social media about his supervisor in which he also encouraged people to vote
yes for the union was at the “outer-bounds of protected, union-related
comments,” according to the 2nd U.S. Circuit Court of Appeals.

Pier Sixty, which operates a catering
company in New York City, employed server Hernan Perez. Many service employees
started to seek union representation in early 2011 and there was a tense
organizing campaign. Two days before the employees voted in support of
unionization on Oct. 27, 2011, Robert McSweeney, a supervisor, directed Perez
in a harsh tone that Perez viewed as disrespectful.

Shortly thereafter, during an
authorized work break, Perez used his cellphone to post a message on Facebook
that disparaged McSweeney and his family with profanity but also urged
employees to vote yes for the union.

Perez was friends with 10 co-workers
whom he knew would be able to see the post. The post was also publicly
accessible—which Perez may or may not have known—before he removed it three
days later; therefore, the post came to the attention of Pier Sixty management.
Following an investigation, Pier Sixty terminated Perez on Nov. 9, 2011. Perez
immediately filed a charge with the National Labor Relations Board (NLRB)
alleging that he was terminated in retaliation for “protected concerted
activities” in violation of the National Labor Relations Act (NLRA).

The following month, the individual
who led the union organizing activities filed a second charge with the NLRB
alleging unfair labor practices. On Aug. 24, 2012, the NLRB consolidated the
two charges.

On April 18, 2013, the administrative
law judge concluded that Pier Sixty violated Sections 8(a)(1) and (a)(3) of the
NLRA. Following Pier Sixty’s exceptions, a split three-member panel upheld the
ALJ’s decision. Pier Sixty filed a petition for review before this court.

The court concluded that Perez’s
Facebook post was not so “opprobrious” that it lost the NLRA’s
protections, finding that despite the “vulgar attacks,” the subject
matter of Perez’s post included concerns about his supervisor’s disrespectful
treatment and the upcoming union election. As part of its holding, the appeals
court noted that Pier Sixty “consistently tolerated profanity” in the

Additionally, the appeals court
highlighted the difference between conduct that occurs “in the immediate
presence of co-workers or customers” and conduct that takes place via
social media, even where the conduct is critical of the employer and is
publicly available to customers and colleagues.

Professional Pointer:
Employers should not assume that extremely foul language—even when directed at
a supervisor’s family members—is sufficient to take the speech outside of the
NLRA’s protection. In evaluating whether conduct is so opprobrious that it
loses NLRA protection, courts may consider whether profanity is commonplace in
that workplace. Courts will also likely draw a distinction between opprobrious
conduct that occurs in real time before customers or colleagues and conduct
that occurs on social media, with greater tolerance for the latter.

Are your company polices compliant with the National Labor
Relations Board (NLRB)? Here at Converge HR Solutions, we are committing to
keeping your team in compliance. We can update policies and provide training so
no issues arise. For more information, visit our website at or directly at or 610-296-8550.

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