In the words of the Church Lady from Saturday Night Live “Isn’t that special.” In a ruling that is certain to make some people shake their heads the NLRB ruled that obscene and offensive language did not go “beyond the pale” as one dissenting member said. It seems to open the door to making union organizing even nastier than it already is.
On March 31, 2015 the NLRB rendered an opinion on a case that had been decided by an Administrative Law Judge on April 18, 2013 in the case of PIER SIXTY, LLC and Hernan Perez and Evelyn Gonzalez. The full board had assigned this to a three person panel, two Democrats and one Republican. It was a split decision in favor of the union and the employee that had been terminated. I will let you figure out who voted for what.
One employee, Hernan Perez, while upset at a supervisor, posted on his Facebook page the statement:
“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!!!!!!!”
Although apparently swearing was very common place at Pier Sixty, people on a regular basis called each other “MotherF**ker” and used the “F” bomb all the time, the HR manager thought that Perez’s statement was too much. Rather than the very casual language normally used it seemed to be more of a personal attack directed toward the supervisor and his family. Thus the company terminated him. The ALJ found this termination to violate the National Labor Relations Act, Section 8(a)(1). The line of reasoning was thus:
- A union election was slated
- Everyone always swore
- Perez’s swearing didn’t seem worse than others
- The company was hostile toward the union’s organization
- Perez posted on Facebook on his own time (a break) outside of the workplace
- In his post he mentioned the election
- Other employees noted his post
Thus the ALJ ruled that the company had committed an unfair labor practice (ULJ) by terminating Perez for engaging in “protected, concerted activity.” Perez was reinstated, with back pay, no penalty from the IRS for that payment and the company had to post a notice of their wrong doing.
The NLRB panel affirmed the decision after it was appealed. Board member Harry I. Johnson, III, dissented with the decision saying that in his opinion Perez’s comments were so egregious that they lost the protection of the Act. He perceived the comments as a threat and therefore felt the company had acted properly in his termination and had not committed the unfair labor practice in his termination and he therefore did not deserve reinstatement. As he said:
“In condoning Perez’ offensive online rant, which was fraught with insulting and obscene vulgarities directed toward his manager and his manager’s mother and family, my colleagues recast an outrageous, individualized griping episode as protected activity. I cannot join in concluding that such blatantly uncivil and opprobrious behavior is within the Act’s protection.”
He did agree that the company had committed other unfair labor practices.
This company was just a very unpleasant place to work. With everyone swearing at each other all the time, even though it was New York, it had to have been a miserable place to work. The behavior of the managers earned them the union they deserved. At the same time threatening the manager’s mother went beyond the bounds of common decency. Perhaps in New York there is a different level of decency in the workplace. I am shocked that the HR manager, who knew of the constant swearing, would let it continue. I dealt with a lot of profanity in a Chicago plant and although I was dealing with a union I reminded the employees of the inappropriateness of such language in the workplace.
As a result of poor management the world now knows what a nasty work environment this company has. Hmmmm… I wonder if this is mentioned on Glassdoor? Interestingly they have a lot of positions open. Anyone want a job in catering?
Thanks to attorneys Erin Fowler and Christopher A. Johlie for the inspiration.