In Pier Sixty, LLC and Hernan Perez and Evelyn Gonzalez, the National Labor Relations Board (the "NLRB" or the "Board") held that an employee's offensive Facebook post about his boss constituted protected concerted activity under the National Labor Relations Act (the "NLRA").
Pier Sixty LLC ("Pier Sixty") employee Perez was upset
with his supervisor, Bob McSweeney, who he believed treated both he
and his coworkers unfairly and in a demeaning manner. Immediately
following a negative interaction with McSweeney, Perez posted the
following on his personal Facebook account:
Both current and former coworkers made comments on the post. Although a coworker showed the posting to management before a scheduled union election, management at Pier Sixty did not confront him about the posting until after the election. The day after the election, Perez removed the post and all accompanying comments. Shortly thereafter, management met with Perez to discuss the post. Perez denied that the "Bob" referenced in his post was his supervisor and he made other false statements regarding the post and what provoked him to draft it. Pier Sixty suspended Perez pending an investigation and ultimately terminated him for harassment of McSweeney under its anti-harassment policy.
The NLRB held that the portion of his post addressing the union election was clearly protected activity; it then analyzed various factors to determine whether the remainder lost NLRA protection due to its obscene nature. The NLRB acknowledged that statements containing profanity do not lose NLRA protection and noted that the Pier Sixty workplace was permeated with a culture of swearing, including supervisor use of the same profanity used by Perez in his post. In holding that the post constituted protected activity under the NLRA, the Board focused on the fact that the post was in response to perceived mistreatment by Perez's manager and that mistreatment by management was one of the reasons behind the union organizing campaign and election. Perez's mention of the union election in his post only bolstered this finding. Thus, the Board held that Perez's termination was unlawful.
This is the latest in a series of NLRB decisions involving negative social media posts where terminations and other discipline for such posts were found to be unlawful. Employers must proceed with extreme caution when reacting to online rants and other negative behavior.
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