Employee's Facebook Post Hurling Obscenities at Manager Was Protected Activity: NLRB

Practical Law Legal Update 6-607-6806 (Approx. 8 pages)

Employee's Facebook Post Hurling Obscenities at Manager Was Protected Activity: NLRB

by Practical Law Labor & Employment

Background

Pier Sixty operated a catering service at Chelsea Piers in New York City. In late October 2011, two days before a scheduled union election prompted by overall dissatisfaction among employees over the hostile manner in which the employer was treating them, several servers were reprimanded by a supervisor during an event. One long-time employee, Hernan Perez, became upset and took a break away from the worksite. During this off-site break, he posted the following message on Facebook about the supervisor:

"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!!!!!!!"

Perez's post could be viewed by all of his "friends" on Facebook, which included some of his co-workers. The post came to Pier Sixty's attention the following day (the day before the scheduled election). After an investigation, Perez was fired in November 2011 for violating company policy with his Facebook post. This was despite the fact that the use of profanity, including the expletives Perez used in his Facebook post, was common among Pier Sixty's management and was regularly directed at employees.

Perez and another employee brought an unfair labor practices (ULP) charge. The ALJ found that Pier Sixty's termination of Perez violated Section 8(a)(3) and (1) of the NLRA, and that Perez's Facebook post constituted protected concerted activity. The ALJ also found that the employer violated Section 8(a)(1) by threatening employees with, among other things, loss of their jobs and benefits and by disparately applying a "no talk" rule. The employer and the NLRB filed exceptions to the ALJ's decision.

Outcome

The Board majority (Chairman Pearce and Member McFerran) found that the employer violated Section 8(a)(1) and (3) of the NLRA by discharging Perez because of his protected concerted comments made in a posting on social media. The Board majority noted that Perez's Facebook post:

Called attention to a supervisor's mistreatment of employees.
Invoked the upcoming election as a way to address the employer's actions.
Was a protest against the employer and a call to other employees to support the union.
Was not so egregious as to lose NLRA protection.

The majority examined the conduct under the totality of the circumstances, rather than adopting the ALJ's application of the four-factor test used in Atlantic Steel Co., 245 N.L.R.B. 814 (1979), asserting that the latter test was not suitable to address employees' off-duty use of social media. (See Richmond District N'hood Ctr., 361 N.L.R.B. No. 74 (2014) and Triple Play Sports Bar & Grille, 361 N.L.R.B. No. 31 (2014).) In evaluating Perez's posting under the totality of the circumstances, the Board majority found that:

There was evidence of Pier Sixty's anti-union hostility, as reflected by:
- multiple instances of ULPs by Pier-Sixty in advance of the union election; and
- the employer's disparate enforcement of its "no talk" rule preventing employees from discussing the union.
Pier Sixty provoked Perez's Facebook post.
Perez's post was impulsive and not deliberate, driven by his frustration over months of disrespectful treatment by managers.
Perez was alone and off-site when he made the post and did not interrupt or interfere with the employer's services.
The subject matter of the post:
- echoed other employees' sentiments regarding the employer's mistreatment of employees; and
- encouraged employees to vote for the union.
The nature of the post involved multiple obscenities but was only "distasteful," and the comments about the supervisor's family were really just directed at the supervisor.
Pier Sixty would not consider the post offensive because it regularly tolerated profanity.
Pier Sixty's "Other Forms of Harassment" policy (cited by Pier Sixty as the basis for Perez's firing) did not prohibit generally vulgar or offensive language.
Pier Sixty had never fired an employee over using obscene language.

Based on these findings, the Board majority upheld the ALJ's decision, holding that:

Perez's Facebook post constituted protected concerted activity under the NLRA, and its use of obscenities did not cause it to lose NLRA protection.
Pier Sixty's firing of Perez over the protected Facebook post violated Section 8(a)(1) and (3) of the NLRA.

Member Johnson, in partial dissent, declined to join the majority's holding regarding Perez's Facebook post, noting that the post:

Warranted discipline for Perez and should not be protected, using the same totality of the circumstances test applied by the majority.
Was an "outrageous" and insubordinate gripe, as well as a "vicious" personal attack on a supervisor's family, that contradicted the Board's claimed goal of maintaining workplace civility.
Went far beyond the type of language that Pier Sixty generally tolerated.

The Board also unanimously held that Pier Sixty violated Section 8(a)(1) of the NLRA by:

Threatening employees with:
- loss of their jobs and benefits;
- loss of their jobs due to lost business; and
- bargaining from scratch.
Disparately applying a "no talk" rule.

Practical Implications

The Board majority's decision in Pier Sixty LLC took a broad approach to obscenity-laden social networking posts by an employee about an employer. The context of the post, coming only days before a union election, coupled with the post's inclusion of advocacy for the union, were enough to outweigh the vulgar and offensive nature of the post. To avoid the risk of an NLRA violation, employers should consider the context and circumstances surrounding an employee's social media post before disciplining or terminating an employee for its content. Employers should also consider implementing policies that prohibit the use of profanity in the workplace and consistently enforce these policies, which can be used to support a decision to terminate an employee for violation of company policy.

UPDATE: The US Court of Appeals for the Second Circuit granted enforcement of the Board majority's decision. The Second Circuit:

Held that Pier Sixty forfeited its challenge to Acting General Counsel, Lafe Solomon's appointment by failing to raise that argument before the Board as required by 29 U.S.C. § 160(e). The Second Circuit rejected Pier Sixty's argument that the invalidity of President Obama's appointment of the Acting General Counsel constituted an "extraordinary circumstance" allowing the court to consider the previously unraised argument (see Legal Update, NLRB Acting General Counsel Invalidly Served from January 5, 2011 to November 4, 2013: DC Circuit).
Affirmed the Board's determination that Pier Sixty's discharge of Perez was unlawful because Perez's conduct was not so "opprobrious" as to lose the NLRA's protection. However, the Second Circuit noted that:
- its conclusion relied heavily on deference to the NLRB's factual findings on the social and cultural context in which the language was used and its interpretation of the NLRA; and
- Perez's conduct was at the "outer-bounds" of union-related comments that the NLRA would protect.

(NLRB v. Pier Sixty, LLC, (2d Cir. Apr. 21, 2017).)

UPDATE:

The NLRB overruled Pier Sixty, LLC in General Motors LLC (369 N.L.R.B. No. 127 (July 21, 2020); see Legal Update, NLRB Sets Uniform Analysis for Evaluating When Employees Forfeit NLRA Rights Because of Offensive Outbursts During Protected Activity).

UPDATE:

On May 1, 2023, in Lion Elastomers LLC, the NLRB overruled General Motors LLC and reinstated the totality of circumstances test as used in Pier Sixty for employee communications with other employees, including on social media (372 N.L.R.B. No. 83 (May 1, 2023); see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(3): Employer Discrimination to Encourage or Discourage Union Membership).

Employee's Facebook Post Hurling Obscenities at Manager Was Protected Activity: NLRB | Practical Law