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April 6 — A catering company violated federal labor law by firing a server for posting a profanity-laced Facebook message that was both a protest of alleged supervisory abuse and a bid for employees to vote for a union in an upcoming election, a divided National Labor Relations Board held March 31.
NLRB Chairman Mark Gaston Pearce and Member Lauren McFerran said Herman Perez's online criticism of an assistant banquet director was “distasteful,” but it was protected by the National Labor Relations Act. Firing Perez violated the statute, the board members said.
Member Harry I. Johnson dissented, finding that Perez went beyond mere obscenity in his Facebook post to launch a “vicious attack” on the company official's family. Johnson found Perez was lawfully discharged for conduct that fell outside the protection of the NLRA.
According to the decision, employees of the New York catering service began to express interest in union representation in early 2011. An NLRB administrative law judge found employees had complained that managers and catering captains treated employees disrespectfully. The employees' dissatisfaction became an issue in a union organizing campaign that culminated in an October 2011 election, the board said.
Two days before the election, assistant banquet director Robert McSweeney chided employees about “chitchatting” among themselves as guests arrived at a catered fundraising event. According to the board, McSweeney rushed to a group of employees and scolded them in a “raised, harsh tone” that was audible to guests to “Spread out, move, move.”
Perez, upset about McSweeney's conduct, went outside and used his mobile phone to post a profanity-filled message on Facebook about McSweeney and his family that also said “Vote YES for the UNION!!!!!!!” The posting was visible to Perez's Facebook friends and to others who visited his personal Facebook page.
The Evelyn Gonzalez Union won the representation election, and Perez deleted the Facebook post the next day. After investigating a report about the posting, Pier Sixty fired Perez about two weeks later.
An ALJ found the discharge violated NLRA Section 8(a)(1), which prohibits employers from interfering with, restraining or coercing employees in the exercise of their NLRA rights, and Section 8(a)(3), which prohibits discrimination against employees for engaging in union activity or supporting a union.
Pearce and McFerran agreed the firing was unlawful. The server's “impulsive reaction” to McSweeney's behavior “reflected his exasperated frustration and stress after months of concertedly protesting disrespectful treatment by managers—activity protected by the Act,” they wrote.
There was no evidence that Perez's Facebook comments interrupted Pier Sixty's work or interfered with its customer relations, the board found, while noting “vulgar language is rife in the Respondent's workplace, among managers and employees alike.”
The board cited evidence that a manager had repeatedly used profanity when criticizing or insulting employees about being slow, stupid or inefficient. Some of the profanities were screamed at employees on a daily basis.
Pearce and McFerran said that although the Facebook post referred to McSweeney's family, the rhetoric simply “served to intensify” Perez's criticism.
Pier Sixty had tolerated similar language by a Pier 60 supervisor, the board found.
The board members said they did not condone Perez's use of obscene and vulgar language, but they agreed he never lost the protection of the NLRA, and he was unlawfully fired for union activity or protected concerted activity.
Dissenting, Johnson said Perez lost the protection of the NLRA by choosing to post obscenities that were not merely “curse words or name-calling.”
Calling the references to McSweeney's family “qualitatively different from the tolerated workplace banter” at Pier Sixty, Johnson said, “We live and work in a civilized society, or at least that is our claimed aspiration.”
Finding Perez was lawfully fired, Johnson wrote that “[e]mployers are entitled to expect that employees will coexist treating each other with some minimum level of common decency.”
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Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9vbm9j.
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