In National Labor Relations Board v. Pier Sixty, LLC, 2017 U.S. App. LEXIS 6974 (2d Cir. Apr. 21, 2017), the Second Circuit Court of Appeals recently found that an employer violated the National Labor Relations Act (“NLRA”) when it fired an employee who insulted a supervisor on Facebook during a union election.

By way of background, in 2011, employees of a New York catering company named Pier Sixty petitioned the National Labor Relations Board (“NLRB”) for an election to vote for union certification. Then, two days before the union certification election was to take place, a supervisor spoke to an employee named Hernan Perez in a “harsh tone,” which Perez viewed “as the latest instance of the management’s continuing disrespect for employees.” This led Perez to post to Facebook that the supervisor “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!!!!!!!”

Pier Sixty thereafter terminated Perez’s employment for violating Pier Sixty’s harassment policy. In response, Perez filed an unfair labor practice charge with the NLRB, claiming that his termination violated Section 7 of the NLRA since he was terminated in retaliation for engaging in protected concerted activity under the NLRA. Under Section 7 of the NLRA, employees have the right “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection,” and under Sections 8(a)(1) and (3), employers are prohibited from retaliating against employees for engaging in concerted activity. However, employees can nonetheless lose the protections of the NLRA if they engage in protected activity in “an abusive manner.” The NLRB found in favor of Perez and issued an order stating same.

After the NLRB petitioned the Second Circuit for enforcement of its order, the Second Circuit agreed with the NLRB and found that Perez’s Facebook posting was in fact protected concerted activity under Section 7, and as such, the termination violated the NLRA. As the Court explained, there were several reasons for this.

“First, even though Perez’s message was dominated by vulgar attacks on [his supervisor] 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 [the supervisor] 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.”

“Second, Pier Sixty consistently tolerated profanity among its workers. The [NLRB] found that Pier Sixty had not previously disciplined employees for widespread profanity in the workplace, including the words ‘f—k’ and ‘motherf—er,’ among other expletives and racial slurs. … And there was no evidence that Pier Sixty has ever discharged an employee solely for the use of offensive language.”

“Third, the ‘location’ of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event.”

The Court therefore determined that the Facebook post, “although vulgar and inappropriate, was not so egregious as to exceed the NLRA’s protection… [n]or was his Facebook post equivalent to a ‘public outburst’ in the presence of customers and thus can reasonably be distinguished from other cases of ‘opprobrious conduct.’”

If you believe that your employer has retaliated against you for engaging in some “concerted activity” protected by the NLRA, it’s smart to immediately contact a New York employment attorney to preserve all your rights.

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