The National Labor Relations Board ("NLRB") has once again condoned the use of obscene and vulgar comments made by an employee on social media regarding a manager and the manager's MOTHER! The NLRB's unreasonable stance says employees can make these types of comments and still receive protection under the National Labor Relations Act ("NLRA") simply by adding a tag-line or comment indicating some type of protected and concerted activity under Section 7 of the NLRA.
On March 31, 2015, two members of an NLRB three-person panel confirmed that Pier Sixty, LLC ("Pier Sixty") violated an employee's Section 7 rights when it fired him for protected, concerted comments which were posted on his personal social media account. The employee, Hernan Perez, worked as a server for Pier Sixty, a catering company. Perez was unhappy with what he believed was disrespectful treatment by an Assistant Manager. While on a work break, Perez used his personal phone to post a message on Facebook expressing his sentiments regarding the Manager. Perez called the manager a "NASTY MOTHER F****R" and a "LOSER," said "f**k his mother and his entire f***ing family," and ended the post by saying "Vote Yes for the Union!" Two days later the bargaining unit voted in favor of being represented by the union.
The Administrative Law Judge "ALJ" found that "perceived hostile and degrading treatment" from management was a driving force behind the union election. In reviewing the finding of the ALJ, the NLRB panel held that the employee's statements regarding alleged mistreatment of employees and seeking redress through the oncoming union election constituted protected, concerted activity and union activity. Because the Pier Sixty workplace was filled with vulgarity, Perez's comments were not egregious enough to lose Section 7 protection. The panel also adopted the ALJ's finding that the activity did not lose its protective character under a totality of the circumstances standard.
One of the panel's members dissented, stating he did not agree that "such blatantly uncivil and opprobrious behavior is within the Act's protection." The full decision can be found at 56 Pier Sixty, LLC, Case Nos. 02-CA-068612 and 2-CA-070797 at the National Labor Relations Board website: http://www.nlrb.gov/cases-decisions/board-decisions.
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