Back in October 2011, Hernan Perez got chewed out by his boss. We've all been there. But Perez, whose workplace was in the midst of a tense unionization campaign, escalated things during his next break by publishing a Facebook post dedicated to his boss:
"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!!!!!!!," the post read.
Three days later, after the post came to management's attention, Perez took it down. A little over a week later, following an investigation, he was fired. He'd worked at the company for 13 years.
But on Friday, a federal appeals court ruled Perez, like all workers, has the right to call his boss a nasty motherfucker — at least when such speech is part of legally protected statements involving union activity.
"We note, however, that Perez’s conduct sits at the outer‐bounds of protected, union‐related comments," the judges wrote.
Pier Sixty, his employer, did not respond to a request for comment Monday.
The post, now more than a half-decade old, was published two days before Pier Sixty employees voted to unionize in an Oct. 27, 2011, election. Perez knew that his Facebook friends, including 10 coworkers, would be able to see the post, although he may not have known it was also publicly accessible.
Because Perez's comments involved union activity, they had the protection of the National Labor Relations Act, the court ruled. The act covers most union-related speech, unless it crosses an ambiguously drawn line into territory so "opprobrious" (Oxford English Dictionary: "expressing scorn or criticism") that it loses protection. That wasn't the case this time, the judges ruled.
The decision draws on guidance from the National Labor Relations Board's General Counsel, which "limited employers' ability to issue rules regarding use of social media, even where employees were posting public criticisms of their employers and workplace."
Since the Facebook post explicitly protested behaviour by management and exhorted employees to “Vote YES for the UNION,” the board could "reasonably determine that Perez’s outburst was not an idiosyncratic reaction to a manager’s
request but part of a tense debate over managerial mistreatment in the period before the representation election," the court ruled.
The ruling also noted that Pier Sixty consistently tolerated bad language among its
workers and "had not previously disciplined employees for widespread profanity in the workplace, including the words 'fuck' and 'motherfucker,' among other expletives."
Pier Sixty had only issued five written warnings to employees for bad language in the six years prior to when Perez was fired, and there was no evidence the company had ever fired someone merely for their swearing.
Employees also testified that managers cursed at employees on a daily basis — including screaming phrases such as “What the fuck are you doing?,” “motherfucker,” and “Are you guys fucking stupid?”
"Under the circumstances presented here, it is striking that Perez—who had been a server at Pier Sixty for thirteen years—was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity," the decision read.
Finally, the court ruled that the “location” of Perez’s comments was Facebook, an online forum that is "a key medium of communication among coworkers and a tool for organization in the modern era."