There are outer limits to insulting speech, but a recent decision seems to indicate that it is really really far out there.
The questions up for consideration: When can an employer fire an employee for profanity during a union organizing drive? When does the employee who stoops to insult not only his supervisor, but his mother, lost the protection of the National Labor Relations Act?The Second Circuit faced these questions and provided a glimmer of hope for employers.
During the course of a nasty union organizing drive at a catering company, an employee became very upset at what he considered the employer’s continued disrespect for the employees.
In response, Perez used his iPhone during a work break to post the following: “Bob [his supervisor] is such a NASTY MOTHER F****R don’t know how to talk to people!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!”
Perez had about ten other employees as friends on Facebook, but the post was also available to the public. Management learned of the post, investigated, and then fired Perez, just days before the election.
An administrative law judge found that the firing violated the law as Perez was engaged in protected, concerted activities. This decision was upheld by the NLRB. The case was then appealed to the Second Circuit.
At the court, the question was whether the post exceeded the bounds of protection by using profanity and insulting the supervisor’s mother.
While the Court in NLRB v. Pier Sixty was disturbed by the language and by the Labor Board’s failure to adequately take into account the employer’s interests in assessing how to evaluate a social media posts, it nonetheless, found a violation of labor law by the employer.
The Court noted that the employer had not disciplined many others for profanity in the past, even though profanity was a common occurrence in the kitchen, that the language was not used at a catered event or in front of customers, that the message focused on matters that are protected, concerns about respect, that the message concluded by urging readers to vote for the union, and that the discharge occurred two days before the voting.
While the Second Circuit upheld the Labor Board’s decision, it sent a message that these facts are on the “outer-bounds of protected, union-related comments.” It cautioned the Labor Board that it needed to be sensitive to employers’ legitimate disciplinary interests and to properly balance the competing interests of employees, unions and employers.
The facts in this case presented the court with hurdles it could not get over. Profanity was common in the workplace, employees had not been disciplined for using profanity in the past, and the incident was almost on the eve of the union vote. The employer was unable to show that the posting online had harmed its business. But in another context, using union organizing as a shield to insult supervisors’ mothers may not work.