If you go on Facebook today to call out your boss, using 12-letter profanities that imply your supervisor has carnal knowledge of their mother, and you also insult your boss’s spouse and kids, you probably won’t have a job to go to tomorrow. Yet a federal appeals court has ruled that a catering service at a well-known Manhattan landmark was in the wrong when it fired a server for this sort of Facebook rant, because that rant was ultimately about a bigger-picture labor dispute.
This all goes back to Oct. 2011 when workers for Pier Sixty, which operates restaurants at New York City’s Chelsea Piers, were about to vote on whether to unionize. Two days before that vote, one server was working at an event when he says his supervisor Bob spoke rudely to him and others.
That server then fired off the following message on Facebook that I’m censoring because I don’t want to lose my job:
“Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
The post was only visible to the server’s Facebook “friends,” and it was deleted three days later, but not before his bosses had learned about it and printed the post for posterity. Within a couple of weeks, he was fired for allegedly violating company policy, though apparently the managers refused to explain exactly which particular policy had been violated.
In April 2013, an administrative law judge with the National Labor Relations Board ruled Pier Sixty had violated the National Labor Relations Act by firing this server in retaliation. A divided three-member panel of the NLRB upheld that ruling in 2015 [PDF].
Pier Sixty appealed the NLRB decision to the Second Circuit Court of Appeals, arguing that the profane Facebook post was “opprobrious conduct” — i.e., speech that goes beyond the pale to the point where the speaker is no longer protected by law.
The earlier rulings had held that while most people would consider the language of the Facebook post to be offensive, this sort of profanity was commonplace among Pier Sixty staff — and the Second Circuit agreed [PDF].
(Fans of juxtaposed profanity may want to read all the court rulings on this, for the rare opportunity to see federal judges opining about the implications of the term “motherf***er.”)
“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,” writes the appellate panel. “But one could reasonably decide… that [the server’s] comments were not a slur against [Bob]’s family but, rather, an epithet directed to [Bob] himself.”
The panel found it “striking” that this employee had worked for Pier Sixty for 13 years, but had never been fired (or even sanctioned) for using foul language until only two days before a union vote. In fact, notes the ruling, in the six years leading up to the 2011 incident, Pier Sixty had only issued written warnings about profanity five times, and had never fired anyone just for using foul language.
Additionally, the Second Circuit pointed out that ranting profanely on Facebook — even if some coworkers see it — is not the same as screaming at your boss at work.
The server’s “outburst was not in the immediate presence of customers nor did it disrupt the catering event,” notes the ruling.
Stripped of the profanity, the court concluded that the underlying subject matter of the Facebook post was the treatment of employees by Pier Sixty management, and that NLRB was right to determine that this firing was likely an act of retaliation for union-related activities.
They pointed to other evidence raised in the earlier proceedings, including the fact that this server and a handful of others had been given a “no talk” order by Bob, who barred them from speaking to each other about union representation, along with allegations that the company had threatened to fire or rescind benefits for employees who voted in favor of the union.
Taken together, the Second Circuit said the NLRB could reasonably determine that the server’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.”