(CN) – An employee should not have been fired for posting a profane Facebook post cussing out his supervisor days before a union vote because it was protected union-related speech, the Second Circuit ruled Friday.
Pier Sixty operates a 2,000-cap waterfront event venue in Manhattan. In 2011, its service employees launched an organizing campaign that was openly opposed by management.
Two days before the vote to unionize, Hernan Perez, an employee with the company for 13 years, was working as a server at a fundraising event when the Assistant Director of Banquets Robert McSweeney allegedly spoke harshly to him and other employees, telling them to “turn your head that way and stop chitchatting” in a raised voice.
On a break, Perez used his phone to post a comment on Facebook stating McSweeney “is such a NASTY MOTHER F-ER don’t know how to talk to people!!!!!! F-k his mother and his entire f-ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
Two days later, Pier Sixty servers, bartenders and coat checkers voted in favor of being represented by the Evelyn Gonzalez Union, and the vote was certified the following month.
Pier Sixty fired Perez two weeks later after learning about the post and deciding that the comment violated its anti-harassment policy.
But the National Labor Relations Board ruled 2-1 that Perez’s firing violated labor laws because his comment about the director’s purported mistreated of employees was protected union-related speech.
The Second Circuit upheld the ruling Friday, finding that Perez’s conduct was not so “opprobrious” as to lose the protections that the National Labor Relations Act grants to union activity.
“Even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the ‘subject matter’ of the message included workplace concerns – management’s allegedly disrespectful treatment of employees, and the upcoming union election,” Judge José Cabranes said, writing for the three-judge panel.
Pier Sixty had enforced a “no talk” rule on groups of employees, including Perez, in an open effort to prevent them from discussing union-organizing with other employees, and McSweeney’s “no chitchat” comment can be understood in this light, the court found.
Further, the company routinely tolerated profanity at work, including the words “fuck” and “motherfucker,” used by both workers and management.
“In the context of daily obscenities, Pier Sixty only issued five written warnings to employees for such an offense in the six years prior to Perez’s discharge,” Cabranes wrote. “And there was no evidence that Pier Sixty has ever discharged an employee solely for the use of offensive language.”
While the Second Circuit panel recognized a difference between generalized obscenities and a slur against someone’s mother and family, it said the timing of Perez’s firing supported a finding that he was terminated for supporting the union.
“Under the circumstances presented here, it is striking that Perez – who had been a server at Pier Sixty for thirteen years – was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity,” the ruling states. (Parentheses in original.)