Tuesday, April 7, 2015

NLRB Holds Employer Who Terminated Employee Who Called Manager a "Nasty Mother F&$#@!" on Facebook Violated NLRA

A case catching some major headlines lately involves a catering company in Manhattan, New York who was found to have committed labor law violations under the National Labor Relations Act (NLRA) when they terminated an employee who took to Facebook to call his boss a "nasty mother ----".  This may sound surprising to many people, but as I often tell people and prospective clients: "the devil is in the details."


Beginning around January 2011, many employees at the catering company began expressing interest in unionization due to increasing concerns about how they were being treated by management.  In March, the employees presented a petition concerning their ongoing complaints about management mis- treatment to Director of Banquet Services Jeffrey Stillwell. The petition included complaints that the Respondent’s managers and captains “take their job frustration [out on] the staff” and “don’t treat the staff with respect.”  

Just two (2) days before the union election in October, 13-year employee Hernan Perez was working as a server at a fundraising event in the Respondent’s Lighthouse venue. During cocktail service, as Perez and two other servers were silently butlering drinks, Assistant Director of Banquets Robert McSweeney approached them and said, in a loud voice, while pointing to the arriving guests, “Turn your head that way and stop chitchatting.” Shortly thereafter, while Perez, Evelyn Gonzalez, and Endy Lora were waiting for the signal from the captain to clear the plates from the appetizer course, McSweeney rushed to them, swung his arms to indicate that they should spread out, and said, in a raised, harsh tone, “Spread out, move, move.” After the employees complied, McSweeney, in a louder voice, audible to guests, ordered the employees to spread out more. McSweeney was one of the managers specifically identified by employees as treating employees disrespectfully.

Perez was incredibly upset with this incident and Gonzalez, who was the head of the employees' organization effort, tried to calm Perez down, citing that the election was only a couple days away.  However, Perez vented his frustration with McSweeney’s treatment of the servers by posting from his iPhone the following message on his personal Facebook page:

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! 
Perez’s post was visible to his Facebook “friends,” which included some coworkers, and to others who visited his personal Facebook page. Perez deleted the post on October 28, the day after the election.  However, Perez's employer still became aware of the post, and, after speaking to some of the individuals associated with the post, decided to terminate Perez's employment, citing violation of company policy.  However, when requested, the managers declined to provide the policy or explain the basis for the termination.

Perez subsequently lodged a charge with the NLRB, and a hearing was held before an administrative law judge who found in favor of Perez, which the 3-panel NLRB (2-1) upheld holding that the employer violated Sec. 8(a)(3) of the NLRA, along with Sec. 8(a)(1) after its employees selected a union as exclusive bargaining representative, by (1) threatening them with the loss of current benefits, job loss and discharge, and job loss due to lost business, and informing employees that bargaining would start from scratch; and (2) disparately applied a “no talk” rule.

In reaching this decision, the law judge considered the following factors instead of the four-factor test in Atlantic Steel Co., 245 NLRB 814 (1979)

(1) whether the record contained any evidence of the employer’s antiunion hostility; 
(2) whether the employer provoked the employee’s conduct; 
(3) whether the employee’s conduct was impulsive or deliberate; 
(4) the location of the Facebook post; 
(5) the subject matter of the post; 
(6) the nature of the post; 
(7) whether the employer considered language similar to that used by the employee to be offensive; 
(8) whether the employer maintained a specific rule prohibiting the language at issue; and 
(9) whether the discipline imposed upon the employee was typical of that imposed for similar violations or disproportionate to his offense. 

Here, the ALJ found that none of these factors weighed in favor of finding that the employee’s comments were so egregious as to take them outside the protection of the Act.

Board's Decision

In affirming the ALJ's decision, the Board found that, "vulgar language is rife in the Respondent’s workplace, among managers and employees alike. For example, the Respondent’s executive chef, Phil DeMaiolo, cursed at employees daily, screaming profanities such as “motherfucker” and asking employees questions like “Are you guys fucking stupid?”  More vulgar and explicit examples were cited in the Opinion, which I will not cite here.

The Board also agreed with the ALJ that “Perez’ Facebook comments were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment on the part of Respondent’s managers, including McSweeney.” Toward that end, Perez’ Facebook posting protested such mistreatment and exhorted employees to “Vote YES for the UNION.”  The Board further agreed with the ALJ that Perez’s comments were not so egregious as to exceed the Act’s protection, however, they did make a point to write that they do not condone Perez's speech.

The case is (Pier Sixty, LLC, March 31, 2015).

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