United States: Oh F**K: Employee's Profane Facebook Post Is Protected Activity

Article by: Jill L. Rosenberg, Stephanie Lee and Annie Chen

On April 21, 2017, the Second Circuit Court of Appeals upheld a National Labor Relations Board (NLRB or Board) ruling that an employer violated the National Labor Relations Act (NLRA or Act) when it discharged a catering employee for posting a vulgar comment on social media directed at his supervisor. In NLRB v. Pier Sixty, LLC (2d Cir. 2017), the court determined that the employee's post, under the particular circumstances of the case, was not so "opprobrious" as to lose protection under the NLRA.

Pier Sixty, LLC operates a catering service company in New York. Beginning in early 2011, many of its service employees expressed interest in union representation, in part due to concerns that management was treating them disrespectfully.  Following a tense organizing campaign that included threats from management (which were undisputed) that employees could be penalized for union activities, the employees voted to unionize.

Two days before the election, employee Hernan Perez was working as a server. His supervisor Robert "Bob" McSweeney gave Perez various directions, including "Turn your head that way [towards the guests] and stop chitchatting," and "Spread out, move, move."  McSweeney's tone in delivering these instructions upset Perez, who perceived it as another incident of the management's disrespect for employees.  During his break, Perez used his phone to post the following message about McSweeney on his Facebook page:

Bob is such a NASTY MOTHER F***ER don't know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was visible to Perez's Facebook "friends", including ten coworkers, as well as to the public. Perez took the post down three days later.  However, the post had already come to the attention of Pier Sixty management which, following an investigation, terminated Perez's employment.

In response, Perez filed an unfair labor practice charge with the NLRB alleging that he had been terminated in retaliation for engaging in "protected concerted activities" under the Act. An Administrative Law Judge issued a decision in favor of Perez and, following an appeal by Pier Sixty, the Board affirmed.  The Board then filed an application for enforcement, and Pier Sixty filed a cross-petition for review with the Second Circuit.

Without determining the validity of the nine-factor "totality of the circumstances" test used by the Board in recent social media cases, the Second Circuit determined that the Board's decision was justified under the deferential standard of review applied to appeals of Board decisions in unfair labor practice cases.

  • First, the court found that even though Perez's message was dominated by vulgar attacks on his supervisor, the "subject matter" of the message included workplace concerns – management's allegedly disrespectful treatment of employees, and the upcoming union election. Pier Sixty had demonstrated its hostility towards employees' union activities, including threats to rescind benefits and/or fire employees who voted for unionization. Thus, the court found that the Board could reasonably determine that the Facebook post was part of a tense debate over managerial mistreatment prior to the election.
  • Second, the court found important that Pier Sixty consistently tolerated profanity among its workers and had not previously disciplined employees for it. In the prior six years, Pier Sixty had only issued five written warnings to employees and terminated no one for such offenses. Thus, the court found that the Board could reasonably conclude that it was improper for Pier Sixty to fire Perez, a server at Pier Sixty for thirteen years, two days before the union election when no other employees had been previously terminated for use of profanity.
  • Lastly, the court found that the comment was made on an online forum that serves as a key platform and tool for employee communication and organization. Perez's comment was not in the immediate presence of customers, nor did it disrupt the catering event. Thus, the court found that the Board did not err in ruling that the post was not considered "opprobrious conduct" so as to lose the protection of the NLRA.

Despite the court's ruling against the employer, the decision is not without limits – focusing on the specific facts presented in the case, the court recognized that an employee engaged in ostensibly protected activity could, depending on the circumstances, act in a way that results in the loss of protection of the NLRA. It also acknowledged that Perez's conduct sits at the outer-bounds of protected comments.  Additionally, in reaching its conclusion, the court noted that it gave substantial deference to the factual findings and decisions of the Board.  Thus, this decision does not stand for the broad proposition that every profanity-laced outburst will be protected.

This decision underscores the need for employers to carefully consider all circumstances relating to employees' social media activities to determine whether a post is related to workplace concerns and even if it is, whether the conduct is so egregious as to lose the Act's protection. It also highlights the need for employers to be consistent when disciplining employees for similar improper conduct.

Employers should also keep in mind that employees who are not represented by a union have rights under the NLRA to engage in protected concerted activity. An employee is engaged in such activity if he or she is trying to induce group action, or seeking to prepare for group action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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