Two cases recently decided by the National Labor Relations Board (“NLRB”) provide insight into an employer’s ability to terminate an employee for using vulgar, offensive, or even threatening language in relation to union organizing activities.  In the first case, Pier Sixty, LLC. and Hernan Perez (“Pier Sixty”), decided March 31, 2015, the NLRB found that the employer had wrongfully terminated the employee who had used social media to engage in “protected concerted activity” relating to union organization.  In the second case, Fresenius USA Manufacturing, Inc. and International Brotherhood of Teamsters, Local 445. (“Fresenius”), decided June 24, 2015, the NLRB held for the employer in ruling that the employer had lawfully terminated the employee consistent with its policies after conducting an investigation.  In both cases, the fact that the employer did or did not consistently implement and enforce its own policy played a significant role in the outcome of the case.

Pier Sixty

In Pier Sixty, Hernan Perez (“Perez”) posted a vulgar and offensive comment to his Facebook page regarding his supervisor during his rest break.  Perez’s post, which personally attacked Robert (“Bob”), his supervisor, stated: “Bob is such a NASTY MOTHER F@#*ER don’t know how to talk to people!!!!!! F@#k his mother and his entire f@#*ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” This comment was reported to Perez’s supervisor and after an investigation, his employment was terminated for violating company policies against vulgar and offensive language.

In assessing the company’s actions, the NLRB spent considerable time looking at whether the company consistently enforced a policy against vulgar and offensive language.  The board found that the content of Perez’s comments was reflective of remarks made by his co-workers and supervisors on a daily basis which contained the same vulgarities but resulted in no disciplinary action.  Therefore, the company could not show that Perez’s termination was consistent with company policy against such vulgar language.  The NLRB also considered among other things that (1) Perez made his comments two days before a union vote and in the context of union organization activities, and (2) the workers wanted to unionize in part because of the rude and demeaning treatment (including similarly vulgar language) that they received from the management.  These factors taken with others showed that the employer could not prove a non-union related reason for terminating Perez’s employment.

Fresenius

In contrast to Pier Sixty, in Fresenius the NLRB held that the employer had lawfully terminated Kevin Grosso (“Grosso”) consistent with its company policies prohibiting vulgar and threatening language.  Similar to the employee in Pier Sixty, Grosso made vulgar comments in the context of union organizing activities.  Grosso wrote three comments on union newsletters which read: (1) “Warehouse workers, RIP”; (2) “Dear P#@!ies, Please Read!”; and (3) “Hey cat food lovers, how’s your income doing?” At the time, these comments were made anonymously. A co-worker of Grosso interpreted the comments as threatening and complained to the employer. As a result, the employer conducted an investigation during the course of which Grosso lied about authoring the comments when he was asked about them.  When it was discovered that Grosso had written the comments, his employment was terminated for the comments and for his deception during the investigation.

The NLRB ruled that “employers have a legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment.”  Thus, because a co-worker had made a facially valid complaint about feeling threatened by the comments, in particular the comment of “Warehouse workers, RIP,” the company had a legitimate business interest in investigating.  Additionally, the NLRB found that the company had tailored its investigation to those facts complained of as threatening, excluding union organizing activities and references to those activities.   Finally, the company had a record of consistently applying a policy of terminating employees who lied during company investigations. Therefore, the company could show that it had terminated Grosso’s employment consistent with its company policies and not for his union-related activities.

LESSONS FOR EMPLOYERS:

Consistently applying company policies is one of the most important, and one of the most difficult, things an employer can do. By having a consistent policy, disciplinary actions of one kind or another can be legitimized through that policy such as in Fresenius. But where enforcement of the policy at issue is inconsistent, that same policy can be used to show that there was discrimination or unfair treatment as in Pier Sixty. In general, employers should be very cautious when deciding whether or not to discipline and/or terminate an employee for making disparaging comments about the company, particularly on social media.  Such decisions will be highly scrutinized especially if the comments are tied to a pro-union message or to comments about wages, workplace safety, or other legally “protected” issues.