By a two-to-one vote, a three-member panel of the National Labor Relations Board (NLRB) upheld an administrative law judge’s findings that an employer unlawfully discharged an employee because of social media comments – including strong obscenities – that were personally critical of a company manager. Pier Sixty, LLC and Hernan Perez, et al, NLRB Cases No 02-CA-068612 and 02-CA-070797, March 31, 2015.

Pier Sixty operates a catering service company in Manhattan, NY. In early 2011, the company’s employees expressed interest in union representation, based in part because of concerns that management treated them “disrespectfully and in an undignified manner.” Those efforts resulted in a successful organizing campaign, after which the Union was certified as the exclusive collective bargaining representatives for the servers, captains, bartenders and coat checkers in the company’s banquet department after an October 27, 2011 election.

Two days before that election, Hernan Perez, a long-term employee, was working as a server at an event. During the cocktail service, a company manager, Robert McSweeney, allegedly approached and – in a loud voice and in front of guests – addressed Perez and two other employees, using an unnecessarily harsh tone, and waiving his arms. McSweeney was one of the company managers identified by employees as treating company workers disrespectfully.

Upset with McSweeney’s treatment, Perez took a break and, outside of the banquet facility, posted from his phone a message to his personal Facebook page. The message referred to McSweeney as a “NASTY M***** F***er” and a “LOSER!!!!,” stated “f*** his mother and his entire f***ing family,” and ended with “Vote YES for the UNION!!!!!!!”

After being made aware of that posting, the Company fired Perez for violation of its obscenity policy. Two charges subsequently were filed: one on behalf of Perez for his firing, and one on behalf of the Union stating that Pier Sixty had threatened employees with loss of jobs and benefits if the Union was chosen as a collective bargaining agent.

The case was tried before an administrative law judge (ALJ), who found on behalf of Perez and in favor of the Union on the charges. The decisions were appealed and reviewed jointly, and the NLRB panel that reviewed the cases upheld the ALJ’s decisions. The Union’s complaints were found to be substantiated, based on remarks made by the Company’s general manager interpreted by employees as threatening jobs, benefits, and access to Company managers.

The panel also upheld the ALJ’s determination that Perez’s firing violated the National Labor Relations Act (NLRA) because Perez’ Facebook post was deemed to be protected concerted activity. Although the Company argued that Perez had violated Company policy regarding obscene language, it was determined that since 2005, the Company had issued only five written warnings to employees who had used obscene language, and had discharged no one on that basis.

Further – and importantly – it was found that Perez’ use of obscene language in his posting was not “qualitatively different from profanity regularly tolerated by [the Company].” According to the NLRB, “the overwhelming evidence establishes that, while distasteful, [the Company] tolerated the widespread use of profanity in the workplace, including the words “f***” and “motherf*****.” Considering that setting, the panel held that Perez’ language in his posting should not have cause him to lose the protections allowed under the NLRA for protected speech.

While critics of this decision have focused on the strongly personal nature of the obscenities used by Perez, a broader reading could serve as a warning to employers who institute anti-obscenity and anti-bullying policies, but fail to implement them consistently. In this case, had the Company regularly trained supervisors, managers and employees on appropriate workplace behavior, and had discipline been imposed consistently for violations of policies related to that behavior, this case may have ended differently.