Skip to main content

Are you a legal professional? Visit our professional site

Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Union Worker's Profane Post on Facebook Is Protected

By William Vogeler, Esq. on April 25, 2017 6:57 AM

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.

Related Resources:

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:
Copied to clipboard

Find a Lawyer

More Options