Introduction

Although at the "outer-bounds of protected, union-related comments", calling your boss a 'nasty mother f***er' no longer guarantees termination of employment.

In NLRB v Pier Sixty, LLC the Second Circuit upheld an order of the National Labour Relations Board (NLRB) and determined that a Pier Sixty employee's termination was a violation of Sections 8(a)(1) and 8(a)(3) of the National Labour Relations Act.(1)

Facts

Hernan Perez was employed as a server by Pier Sixty, a New York-based catering company. Employees at Pier Sixty were in the middle of a heated union organising campaign when Perez's boss, Bob, spoke to him and his co-workers at a catering event in a "harsh tone", which Perez did not appreciate. Perez took to Facebook during a break to share his thoughts: "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!!!!!!!"

Perez was fired two weeks later, after Pier Sixty's management became aware of his post. On the same day that he was fired, Perez filed a charge with the NLRB alleging that his termination was retaliation for engaging in "protected concerted activities" under the National Labour Relations Act.

Section 7 of the National Labour Relations Act affords protection for employees engaged in union-related activities, as well as "other concerted activity for mutual aid and protection". Sections 8(a)(1) and 8(a)(3) prohibit employers from interfering with or infringing on employee's Section 7 rights. However, activities normally protected by Section 7 and the National Labour Relations Act may fall outside the bounds of protection if they are conducted in an "abusive" manner.

Decision

In Pier Sixty, LLC the Second Circuit had to determine whether Perez's Facebook post crossed this abusive conduct threshold. Pointing to three main factors, the court agreed with the NLRB's decision that, although offensive, Perez's post was not so reprehensible as to deprive him of protection under the National Labour Relations Act.

The first factor was the subject matter of the post workplace concerns in the middle of a union campaign and the post went directly to Perez's concern about mistreatment of employees. Second, the court noted that Pier Sixty had a history of allowing profanity by employees. Finally, the Second Circuit noted that the location of Perez's outburst was social media, as opposed to a "public outburst" in the presence of customers. The court reasoned that social media has become a widely relied on tool for communication and organisation among co-workers. Therefore, the court found that the NLRB had not erred in finding that Pier Sixty had violated the National Labour Relations Act when it terminated Perez's employment.

Comment

At first glance, this decision may seem to give employees a free pass to verbally assault their bosses, as long as they add "vote union" at the end. However, the reality of employee protection is more nuanced, and context is key.

In general, employers should remember that employees have Section 7 rights regardless of whether employees are members of a union. The NLRB and the courts have demonstrated that Section 7 rights are to be broadly construed, and even offensive conduct may be protected. Therefore, employers should always be cautious and thoroughly evaluate the circumstances before taking punitive action against employees where there is talk of union representation or other activities potentially aimed at mutual aid and protection. As social media is an integral part of everyday life, employers may want to re-evaluate their policies, including their social media policies, to make sure they are not infringing on employee's Section 7 rights.

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For further information please contact Erin E Burns at DeWitt Ross & Stevens SC by telephone (+1 608 255 8891) or email (eeb@dewittross.com). The DeWitt Ross & Stevens SC website can be accessed at www.dewittross.com.

Endnotes

(1) Nos 15-1841-ag (L), 15-1962-ag (XAP), decided April 21 2017.