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Now You, Too, Can Call Your Boss a Nasty Motherf****r (Read More…)

By Mark A. Konkel
April 26, 2017
Maybe we’ve all thought it at some point in our careers. But according to the Second Circuit Court of Appeals, you might actually be able to get away with saying it—that is, calling your boss a nasty mother****r—if you’re saying it because you care about your coworkers, and if you all swear a lot at work anyway.

So has demonstrated Hernan Perez, a former server at New York catering company Pier Sixty, and now a foul-mouthed trailblazer for questionable employee rights.  His plight, and verbatim reprints of his lurid, social media-based profanities, can be found in a decision just published by the Second Circuit Court of Appeals in National Labor Relations Board v. Pier Sixty, LLC, Nos. 15‐1841‐ag (L), 15‐1962‐ag (XAP) (April 21, 2017).

In 2011, workers at Pier Sixty petitioned the National Labor Relations Board (NLRB) for an election to vote for union representation. One day at work, in the run-up to the election, a manager (we’ll identify him here only as “Bob”) told Perez and others “in a harsh tone” to spread out on the catering floor better to serve customers. Perez didn’t like this. We know for sure that Perez didn’t like this, because one day later he posted on his Facebook page:
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!!!!!!!

It is difficult to know where to start, and whether to feel sorry for Bob, Bob’s mother, or Bob’s entire, um, family.
Pier Sixty didn’t feel sorry for Perez at all, however. Anyone reading the Facebook post would recognize Perez’s public estimation of his boss as a career-limiting move. And Perez was fired. He then filed unfair labor practice charge with the NLRB, claiming that his termination was motivated by his having engaged in activity that was protected under the National Labor Relations Act—and the NLRB agreed.

Pier Sixty’s trouble actually started in 1935, way before Perez was born, when Congress passed the National Labor Relations Act (NLRA).  Under Section 7 of the NLRA, employees have a right to choose a union to represent them, and “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The reason for this statutory protection is obvious: many employers don’t like it when their employees unionize or complain about working conditions, and employees’ Section 7 rights wouldn’t mean much if employers could fire them for engaging in protected concerted activity.

The Second Circuit found that Perez’s Facebook abomination, however offensive, was protected under Section 7.  To see why, read what the Court itself had to say:
First, even though Perez’s message was dominated by vulgar attacks on [Bob] and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. Pier Sixty had demonstrated its hostility toward employees’ union activities in the period immediately prior to the representation election and proximate to Perez’s post. Pier Sixty had threatened to rescind benefits and/or fire employees who voted for unionization. It also had enforced a “no talk” rule on groups of employees, including Perez and [another server], who were prevented by [Bob] from discussing the Union. Perez’s Facebook post explicitly protested mistreatment by management and exhorted employees to “Vote YES for the UNION.” Thus, the [NLRB] 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.

For further context, the Second Circuit also pointed out that similar vulgarity was routinely tolerated at Pier Sixty. (Note: do not ask Perez for one too many hors d’oeuvres unless you’re ready for an earful.)

It would be easy to criticize a crazy NLRB and a liberal Second Circuit for enshrining Perez’s references to what Bob may or may not have done to his mother in the pantheon of protected labor rights. But as with so many things in labor and employment law, context is everything. The employer tolerated crude language at work, apparently made no secret that it didn’t like that Perez liked the union, and fired Perez for speech that was more or less about the union (with Bob and his mother, and their family, as collateral victims in the driveby). This made it far easier for the Second Circuit to conclude that, profanity notwithstanding, Perez’s speech was related to working conditions and the union election.

What might Pier Sixty have done to keep Bob’s purported relations with his mom off Facebook? For starters, it might have trained Bob a little better on how to react during a union organizing campaign. Telling employees not to talk to each other, threatening to rescind benefits if employees organize, and preventing employees from discussing the union signals fear, which everybody can smell—including every employee who was about to vote in the Pier Sixty union election. (Employee reaction:  “If my employer is so scared of the union, maybe the union is onto something”; or “You told me not to do something, and I’m human, so I’m going to do it.”) Managers are much better off welcoming questions and asking employees to keep an open mind to information about unionization than attempting to gag them.

The bottom line for employers is this: when employees are talking about terms and conditions of employment, particularly where a question of union representation is out there, they can say more—and say more offensive things—than employers would often prefer to hear at work. Employers should tread carefully when taking punitive action against employees for things the employer doesn’t like hearing (or reading).

An employer still has the right to insist on efficient, appropriate provision of services to customers, and insist that employees do their jobs well. If Perez had screamed his vulgarities to a room full of paying customers, this case might have ended differently; creating offense or chaos in a physical workplace with real customers in it isn’t the same thing as a Facebook post that is much less direct.

But the facts in the Second Circuit case were what they were. Employers now live with the infamous Perez Rule, under which employees may have the option of telling the boss to go f**k him- or herself. But only if they’re saying it on behalf of their coworkers. And only if they all swear at lot at work.

Posted by Admin on 04/28 at 01:29 PM

The New DNC Chair Has A Message For Union Members Who Voted Trump (Read More…)

BY Richard Berman
April 19, 2017
Tom Perez, the new chairman of the Democratic National Committee (DNC), just made his pitch to union voters. He wasted his breath.

“I understand that in this election many people who voted in the past for Barack Obama or other Democrats decided to vote differently—and I respect those choices,” Perez recently told an audience at the United Steelworkers’ (USW) annual convention. He went on to tell the gathered union members that Democrats “have to earn your trust.”

But it didn’t take long for the DNC head to attack newly confirmed Judge Neil Gorsuch, claiming that the new justice is “poised to make it even harder to organize.”

That’s right: Tom Perez’s message to union members who voted for President Trump is that the Supreme Court will make union organizing more difficult. Why would union members—many of whom didn’t even vote for their union—care when they’ve already been organized? Less than 10 percent of union members ever voted for the union currently “representing” them.

In many workplaces, the same union leadership remains in power even as the workforce experiences substantial turnover. The current employees have no realistic chance to assess their leadership through a recertification elections. To them, Perez is like a hostage-taker sermonizing about freedom.

Corporate interests. Anti-union. An attack on working families. Perez and Democrats instinctively recycle the same stale talking points, only to see more union members leave them at the altar. According to a Rasmussen poll conducted before the election, only 20 percent of Americans see labor leaders as “do[ing] a good job representing union members.” Even among current or former union members, only 25 percent have a favorable view of union leadership.

The message is clear: Blue-collar employees have lost their patience with union elites. And for good reason: A simple look at union financial disclosures reveals that many union bosses are in the top one to three percent of earners. Hundreds of union officials have massive six-figure incomes while they rail against corporate “fat cats.”

And that’s only the tip of the iceberg. Just last year, the United Steelworkers paid nearly $95,000 for “luxurious rooms [and] award-winning cuisine” at the Omni William Penn in Pittsburgh. The union dropped another $66,374 on a single occasion at the nearby Sheraton Pittsburgh. In Washington, D.C., the USW paid roughly $100,000 for a single night at the upscale Omni Shoreham Hotel, while spending thousands of dollars on Pittsburgh Steelers tickets. “We believe in better,” the union claims on its website. Well, that much is clear.

And USW leadership is not alone in its excessive tastes. These examples—funded by mandatory dues—have become the rule rather than the exception.

Can you blame union members for being fed up? Millions of union Obama voters saw in President Trump a problem-solver, someone who can hold elites accountable, while creating jobs and renegotiating the same trade deals that have destroyed countless American factories. As Bernie Marcus, the co-founder and first CEO of The Home Depot, recently wrote, “He’s clear-cutting the path to robust economic growth.”

Did union household voters in Ohio—who overwhelmingly voted for President Trump after supporting President Obama four years earlier—also have an agenda where their dues will fund new organizing campaigns? Does Perez believe that they are interested in corralling more employees into a mandatory funding scam?

Memo to Perez: The problem isn’t some anti-union boogeyman. It’s your agenda.


Posted by Admin on 04/19 at 01:16 PM