05-02-2017
Pier Sixty is a catering company that operates restaurants on New York City’s Chelsea Piers. In 2011, the company was in the midst of a tense union organizing drive. Hernan Perez, an employee of Pier Sixty, became angry with his supervisor during a catering event. He claimed that this supervisor treated him in a demeaning way. During a break, Mr. Perez went on to his Facebook page and posted the following: “Bob is such a NASTY (expletive deleted) don’t know how to talk to people!!!!!! (Expletive deleted) his mother and his entire (expletive deleted) family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!” Mr. Perez’ Facebook page was public and followed by some other employees. Once the company learned of the post, Mr. Perez was fired.
Shortly thereafter, the workers voted to form a union. Mr. Perez filed an unfair labor charge with the National Labor Relations Board. The NLRB found that Mr. Perez’ termination was in retaliation for his post, which was “protected activity.” Under the National Labor Relations Act, employees have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Both union and non-unionized workers are protected.
The Second Circuit Court of Appeals agreed that Mr. Perez’ firing was unlawful. Several essential factors convinced the court. One, the employer had a history of permitting cursing in the workplace from its employees without discipline. No other employee had been terminated for use of offensive language. Additionally, the Facebook statement, while public, was not made in the front of customers and it did not impact the catering event that was ongoing during the post. Removing the curse words from the rant, it showed that Mr. Perez was likely fired in retaliation for union related acts. Evidence showed that management had tried to stop employees from speaking to each other about union activities leading up to the election.