U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Union Worker's Profane Post on Facebook Is Protected

An employee's Facebook comments -- including the f-word directed at a supervisor's mother -- days before a union vote were protected by labor laws, a federal appeals court ruled.

The U.S. Second Circuit Court of Appeals said that the Facebook post was "vulgar and inappropriate," but it was not beyond the protections of the National Labor Relations Act. The appeals court said in National Labor Relations Board v. Pier Sixty that the employee should not have been fired under the "totality of the circumstances."

"However, we note that this case seems to us to sit at the out-bounds of protected, union-related comments," the appeals court said.

"YES for the UNION!!!!!"

The case arose after Pier Sixty, a catering company in New York City, fired Hernan Perez for posting profane comments about his supervisor days before a union vote. Perez was upset with Robert McSweeney for chiding him at work for "chitchatting."

Perez took it out on McSweeny that day with this Facebook post:

"Bob is such a NASTY MOTHER F----- don't know how to talk to people!!!!!! F--- his mother and his entire f------- family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!"

The employees voted for the union, and Perez was fired soon after. He filed a complaint with the NLRB, and an administrative law judge ruled in his favor, finding that the employer had wrongly fired Perez and violated employee rights to talk about union organization.

"Generalized Scatology"

On appeal, the Second Circuit affirmed. Among other reasons, the appellate panel noted that the employer had tolerated profanity in the workplace for years.

McSweeney had cursed at employees on a daily basis, the court said, including screaming phrases such as "What the f--- are you doing?" "Motherf-----," and "Are you guys f------ stupid?"

"We recognize that one could draw a distinction between generalized scatology (or even cursing at someone), and, on the other hand, cursing someone's mother and family," Judge Jose Cabranes wrote. "But one could reasonably decide, as the ALJ did in this case, that Perez's comments 'were not a slur against McSweeney's family but, rather, an epithet directed to McSweeney himself.'"

Prior to the union vote, Pier Sixty had enforced a "no talk" rule on employees to prevent them from discussing union organization. McSweeney's "no chitchat" comment could be understand in this light, the court said.

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