Second Circuit Finds Employee’s Facebook Post Protected Under NLRA

Lev Craig

The U.S. Court of Appeals for the Second Circuit recently affirmed the determination of the National Labor Relations Board (NLRB) in NLRB v. Pier Sixty, LLC, a case involving the boundaries of union-related activity protected under the National Labor Relations Act (NLRA). In its April 21, 2017 decision, the Second Circuit held that Pier Sixty, LLC, had violated the NLRA when it terminated an employee over his union-related Facebook post, even though the post used obscenities and disparaged the employee’s supervisor.

The NLRB is a federal agency tasked with the “prevention of statutorily defined unfair labor practices on the part of employers and labor organizations” and is authorized to investigate, prosecute, and adjudicate claims of unfair labor practices. The agency was created by the NLRA, a federal labor law passed in 1935 which protects the rights of employees to organize, engage in collective bargaining, and participate in other union-related activities. The NLRA prohibits an employer from terminating an employee based on “protected concerted activity,” a term referring to employees working together to improve the terms and conditions of their employment—for example, attempting to form a union, discussing pay and safety concerns with other workers, and making complaints about workplace conditions. However, there are exceptions if an employee’s behavior is found to be so “opprobrious” that it no longer falls within the NLRA’s protections. Though the NLRA generally protects union-related activity, “even an employee engaged in ostensibly protected activity may act ‘in such an abusive manner that he loses the protection’ of the NLRA.”

In NLRB v. Pier Sixty, employees at Pier Sixty, a New York­­–based catering company, began seeking union representation in 2011. In late October 2011, the employees ultimately voted to unionize after a contentious organizing campaign involving “threats from management that employees could be penalized or discharged for union activities” (which Pier Sixty did not contest violated the NLRA). A few days before the union election, Hernan Perez, a Pier Sixty server, posted an angry, derogatory message about his supervisor, Robert McSweeney, on his Facebook page after McSweeney spoke harshly to a group of Pier Sixty employees. Shortly afterward, Perez, viewing McSweeney’s behavior as “the latest instance of the management’s continuing disrespect for employees,” wrote the Facebook post, which read, “Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

The post came to the attention of Pier Sixty management, who fired Perez approximately a week later for his use of “obscenities.” Perez then filed a charge with the NLRB, alleging that he had been unlawfully terminated for engaging in protected concerted activities. The NLRB determined that Perez’s termination violated sections 8(a)(1) and 8(a)(3) of the NLRA, which prohibit employers from retaliating against employees for union-related activity. Pier Sixty petitioned for the Second Circuit to review the decision, arguing that Perez’s Facebook post was so offensive that it constituted “abusive” behavior beyond the protections of the NLRA.

In its April 21, 2017 decision, the Second Circuit sided with the NLRB. While the court did find that Perez’s post was “at the outer‐bounds of protected, union‐related comments,” it nonetheless held that Perez’s conduct was protected activity. Even though the message insulted Perez’s supervisor and used profanities, the post’s subject matter was clearly workplace concerns, namely, unionizing and management’s treatment of employees: “Perez’s Facebook post explicitly protested mistreatment by management and exhorted employees to ‘Vote YES for the UNION.’” In light of that subject matter and Pier Sixty’s previous hostility towards employees’ efforts to unionize, the court held that it had been reasonable for the NLRB to view Perez’s comments as “part of a tense debate over managerial mistreatment in the period before the representation election,” rather than “an idiosyncratic reaction to a manager’s request.”

The court also took into account that Pier Sixty generally tolerated profanity in its workplace, including employees’ frequent use of expletives and racial slurs; the company had issued just five warnings for inappropriate language in the six years prior to Perez’s termination, and no Pier Sixty employee other than Perez had ever been terminated solely for using obscenities in the workplace. In sum, the court wrote, “it is striking that Perez—who had been a server at Pier Sixty for thirteen years—was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity.”

Finally, the court rejected Pier Sixty’s argument that Perez’s message had constituted a “public outburst” because it was publicly accessible on Facebook. Though a Facebook post may be visible to the public, depending on a user’s privacy settings, the court found that a Facebook post was distinct from a “public outburst”: Perez’s comments were not made in front of customers, nor did they disrupt the workplace or a catering event. In addition, Perez claimed that he had erroneously thought that his Facebook page was private and, upon learning otherwise, had immediately taken the post down. As such, the court found, Perez’s Facebook post was not equivalent to a “public outburst” in the presence of customers.

If your employer has violated your rights under U.S. labor laws, contact The Harman Firm, LLP.