In National Labor Relations Board v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017), the United States Court of Appeals for the Second Circuit upheld a decision by the National Labor Relations Board (“NLRB” or “Board”) that found a vulgar Facebook post repeatedly using variations of the “f” word constituted protected concerted activity.

In Pier Sixty, the employer (Pier Sixty) operated a catering company in New York City. Many of Pier Sixty’s service employees started seeking union representation in 2011. A contested union campaign ensued, which included threats from management that employees may be subject to discipline or terminated from employment for union-related activities. Two days before the election, a supervisor named Robert McSweeney told an employee named Hernan Perez and two other servers at an event in a harsh tone that they each had to “[t]urn your head that way [toward the guests] and stop chitchatting.” McSweeney also told them to “[s]pread out, move, move” in the same allegedly harsh tone. Perez was upset by McSweeney’s tone, and considered it the latest example of poor treatment and disrespect directed toward employees of the company. About forty-five minutes after the incident while on a break, Perez took to Facebook and posted the following:

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! ! ! ! ! ! !

There were at least ten co-workers among Perez’s Facebook friends who could see the post, and it was publicly accessible, which Perez did not know at the time of posting. Three days after posting (and one day after the election), Perez took the post directed at McSweeney down, but its contents had already come to management’s attention. Approximately twelve days after the post had come down and the company had completed an investigation, Pier Sixty terminated Perez’s employment.

Perez filed an unfair labor practice charge with the NLRB. An administrative law judge (“ALJ”) found that Pier Sixty violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (“NLRA”) by terminating Perez’s employment in retaliation for engaging in protected concerted activity. Pier Sixty filed exceptions to the ALJ’s decision and the Board upheld the decision. Pier Sixty then appealed to the Second Circuit.

The Second Circuit noted that Section 7 of the NLRA permits employees to “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid and protection.” Sections 8(a)(1) and 8(a)(3) of the NLRA prohibit an employer from terminating an employee’s employment for engaging in protected concerted activity under Section 7. Employees that engage in “abusive” conduct, however, lose the protections of the NLRA, even if the conduct is ostensibly concerted activity. The question in this case was whether Perez’s Facebook post constituted abusive behavior that was not protected under the NLRA.

The Second Circuit noted that determinations as to what constitutes “abusive” behavior typically have been evaluated under the following four factor test: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked in any way by an unfair labor practice charge. The court further noted that the four factor test had been questioned in recent years over concerns that it did not give sufficient consideration to outbursts in public places in the presence of customers. The Second Circuit also noted that the NLRB’s General Counsel’s Office in the last few years developed “employee-friendly” guidance that limited an employer’s ability to issue rules regarding the use of social media, even when employees post public criticism about a company and its workplace. As a result of the General Counsel’s guidance, the Board has since developed a nine-factor “totality of circumstances” test to evaluate conduct in social media posts. The nine-factors are: (1) evidence of antiunion hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the content; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the conduct at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense. Although the Second Circuit commented that it was “not convinced that the amorphous ‘totality of the circumstances’ test adequately balances an employer’s interests,” it was not going to question its validity in this case because Pier Sixty did not object to its use.

In finding that substantial evidence supported the Board’s decision, the Second Circuit considered several factors. First, the court found that the “subject matter” of the post included workplace concerns – specifically, management’s allegedly disrespectful treatment of employees and the upcoming union election. The court further noted that Pier Sixty had demonstrated its hostility toward union activity by making various threats to employees, including threats to terminate employment and rescind benefits, and by enforcing a “no talk” rule toward certain groups of employees, including Perez who was prevented from discussing the union. Based on this evidence, the court concluded that Perez’s outburst was not an idiosyncratic reaction to a request by management; rather, it was part of an intense debate regarding managerial mistreatment of employees before a representation election. Second, there was evidence that Pier Sixty had not disciplined employees for profanity in the workplace, including use of the words “fuck” and “mother fucker.” To this end, the court noted there was evidence of daily obscenities in Pier Sixty’s workplace of the kind used in Perez’s post, including regular use of such terms by McSweeney, and no employee had been terminated from employment for such vulgarity until Perez was terminated around the time of a union election. The court further found that, although there were vulgar comments in Perez’s post specifically referencing McSweeney’s family, it was reasonable to conclude that those vulgarities were directed at McSweeney himself and not his family. Third, with respect to the location of Perez’s comments, the court found they were made in an online forum that is a key medium for workers to communicate and organize in the modern era. Although the post was available for customers to see because it was publicly posted, Perez took down the post upon learning that his Facebook page was not set on private (which occurred only three days after he posted it in the first place) and the post was not in the “immediate presence” of customers and it did not “disrupt the catering event.”

Based on the foregoing, the court upheld the Board’s decision that Pier Sixty had committed unfair labor practices by terminating Perez’s employment. The Second Circuit, however, noted that its decision “sit[s] at the outer-bounds of protected, union-related comments, and any test for evaluating ‘opprobrious conduct’ must be sufficiently sensitive to employers’ legitimate disciplinary interests.”

The Second Circuit’s decision in Pier Sixty is significant because it is yet another example of the wide latitude employee’s are given to make comments on social media that are vulgar, disparaging, and even threatening toward management without being subject to discipline. While the Second Circuit considers this case to be on the “outer-bounds” of protected concerted activity and welcomes a new test to evaluate the degree of protection afforded to social media posts by employees, until a new test is established and it curtails some of the conduct employees have been allowed to perpetuate via social media, companies need to be mindful of risks associated with taking disciplinary action against employees who post vulgar and obscene material on social media about supervisors and the company.

If you have any questions regarding this post, please contact Stephen B. Stern at sstern@hwlaw.com or (410) 260-6585.

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