Legal Updates

The NLRB Says My Employee Can Call Me What?

Employers are often surprised by the extent to which the National Labor Relations Act (“NLRA”) protects intemperate, even abusive, outbursts by employees in connection with union matters or other workplace issues. While, in some instances, statements made by an employee may be deemed so obnoxious or disruptive as to forfeit the protections of the NLRA, employees generally enjoy a fair degree of latitude in criticizing their employer or its supervisors in connection with work-related issues of mutual concern to employees.

A recent decision by the U.S. Court of Appeals for the Second Circuit, NLRB v. Pier Sixty, LLC, affirming a ruling by the National Labor Relations Board (“NLRB”), illustrates this point. Both the NLRB and the Second Circuit concluded that an employee’s angry social media rant – which included obscenities directed toward his manager and the manager’s family – was protected under the NLRA, in large part because the employer had never previously fired or otherwise disciplined employees for using similar vulgarities.

As this decision underscores, employers should act with caution in terminating or otherwise disciplining employees for even seemingly outrageous statements that implicate union issues or other matters covered by the NLRA.

Background

In general, the NLRA gives both unionized and non-unionized employees a right to engage in “protected concerted activities” – that is, actions aimed at employees’ mutual aid and protection, and relating to the terms and conditions of their employment. An employer that discharges an employee for actions falling within this rubric can be ordered to reinstate the employee with back pay.

In recent years, the NLRB has shown a particular interest in safeguarding social media expression by employees related to their terms and conditions of employment. Many NLRB and court decisions, including the Pier Sixty case, have involved efforts to balance this principle against employers’ interests in maintaining respect and civility in the workplace.

A Problematic Facebook Post

Pier Sixty operates a catering company in New York City. In early 2011, many of the company’s service employees began seeking union representation. The organizing campaign, which ultimately resulted in the workers’ voting to unionize, was tense, with managers allegedly threatening to discharge or otherwise penalize employees for union-related activities.

Two days before the union representation election, Herman Perez (“Perez”), a longtime Pier Sixty employee, was working at a catering event when he and two other servers received directions from their supervisor, Robert McSweeney (“McSweeney”). Speaking in what the NLRB described as “harsh tones,” McSweeney ordered Perez and his co-workers to “turn [their] heads [towards the guests] and stop chitchatting,” and to “spread out, move, move!”

About 45 minutes later, during an authorized break from work, Perez posted the following message about McSweeney on Perez’s Facebook page:

Bob is such a NASTY [expletive] don’t know how to talk to people!!!!!! [Expletive] his mother and his entire [expletive] family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Perez’s Facebook “friends,” ten of whom were co-workers, were able to view the post. The post was also publicly accessible, though Perez claimed not to have been aware of that fact. By the time Perez took down the post – three days later – management had become aware of what Perez had posted. Subsequently, the company conducted an investigation, which culminated in Perez’s termination.

In response to his termination, Perez filed a charge with the NLRB, alleging that he had been unlawfully fired for engaging in protected concerted activities. After a hearing, an NLRB administrative law judge concluded that Perez’s Facebook post had constituted protected activity, for which Perez was unlawfully terminated. A three-member NLRB panel affirmed the administrative law judge’s decision.

Subsequently, the NLRB asked the Second Circuit to enforce its decision, and Pier Sixty filed a cross-petition seeking to vacate the holding.

The Second Circuit’s Holding

In its decision, the Second Circuit noted that while the NLRA generally prohibits employers from taking adverse employment actions based on concerted activity – including social media communications among employees relating to terms and conditions of employment – otherwise protected activity may be so outrageous or extreme that it loses the protection of the NLRA. (The NLRB and the federal circuit courts have applied varying legal standards in determining when this line has been crossed.)

The Second Circuit concluded, however, that though Perez’s Facebook post was vulgar and offensive, it did not go beyond the pale of NLRA protection. The court cited a number of factors in support of this conclusion:
 

• While Perez’s post included vulgar attacks on McSweeney and his family, it also referred directly to the impending union election. 

• Pier Sixty had consistently tolerated the use of obscenities by its employees, including the specific vulgarities used by Perez in his post. Since Pier Sixty had never disciplined – let alone discharged – any other employee solely for using obscenities, the NLRB had reasonable grounds for concluding that Perez would not have been terminated had his Facebook post occurred outside the context of the union election.

• The forum Perez used for his comments – Facebook – has become a key medium of communication among coworkers and an important tool for union organizing.

• Finally, while Perez’s Facebook post was visible to the public – including actual and potential Pier Sixty customers – his online comments were, nonetheless, distinguishable from an outburst occurring in front of customers attending a catering event. 

The Second Circuit cautioned, however, that Perez’s activity fell on the “outer-bounds of protected, union-related comments.” Indeed, the court suggested in its decision that if Pier Sixty had had an established practice of disciplining employees for similarly obscene outbursts, its termination of Perez might have been upheld.

Implications For Employers

The Pier Sixty case provides some helpful reminders for employers. In particular, an employer should approach with caution any potential firing stemming from a social media posting by an employee pertaining to union or other workplace issues. The risk of any such firing increases when the post is viewable, commented on, “retweeted,” or “liked” by fellow employees, as this makes the concerted nature of the activity even more apparent.

Similarly, if an employer intends to discipline an employee for obscene or otherwise extreme statements related to workplace issues, the employer should consider whether it has previously disciplined employees for similar conduct unconnected to issues implicating the NLRA. Again, the fact that Pier Sixty had consistently tolerated similar vulgarities by employees in other contexts was a pivotal factor in the Second Circuit’s conclusion that Perez’s termination was unlawful.

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If you have questions regarding the Pier Sixty decision or would like assistance in evaluating the risks of potential discipline for employee conduct involving protected concerted activity, please feel free to contact one of our experienced labor attorneys.