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An employee's profanity-laced post on social media about his supervisor in which he also encouraged people to vote yes for the union was at the "outer-bounds of protected, union-related comments," according to the 2nd U.S. Circuit Court of Appeals.
Pier Sixty, which operates a catering company in New York City, employed server Hernan Perez. Many service employees started to seek union representation in early 2011 and there was a tense organizing campaign. Two days before the employees voted in support of unionization on Oct. 27, 2011, Robert McSweeney, a supervisor, directed Perez in a harsh tone that Perez viewed as disrespectful.
Shortly thereafter, during an authorized work break, Perez used his cellphone to post a message on Facebook that disparaged McSweeney and his family with profanity but also urged employees to vote yes for the union.
Perez was friends with 10 co-workers whom he knew would be able to see the post. The post was also publicly accessible—which Perez may or may not have known—before he removed it three days later; therefore, the post came to the attention of Pier Sixty management. Following an investigation, Pier Sixty terminated Perez on Nov. 9, 2011. Perez immediately filed a charge with the National Labor Relations Board (NLRB) alleging that he was terminated in retaliation for "protected concerted activities" in violation of the National Labor Relations Act (NLRA).
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The following month, the individual who led the union organizing activities filed a second charge with the NLRB alleging unfair labor practices. On Aug. 24, 2012, the NLRB consolidated the two charges.
On April 18, 2013, the administrative law judge concluded that Pier Sixty violated Sections 8(a)(1) and (a)(3) of the NLRA. Following Pier Sixty's exceptions, a split three-member panel upheld the ALJ's decision. Pier Sixty filed a petition for review before this court.
The court concluded that Perez's Facebook post was not so "opprobrious" that it lost the NLRA's protections, finding that despite the "vulgar attacks," the subject matter of Perez's post included concerns about his supervisor's disrespectful treatment and the upcoming union election. As part of its holding, the appeals court noted that Pier Sixty "consistently tolerated profanity" in the workplace.
Additionally, the appeals court highlighted the difference between conduct that occurs "in the immediate presence of co-workers or customers" and conduct that takes place via social media, even where the conduct is critical of the employer and is publicly available to customers and colleagues.
NLRB v. Pier Sixty, LLC, 2nd Cir., Nos. 15–1841–ag (L), 15–1962–ag (XAP) (April 21, 2017).
Professional Pointer: Employers should not assume that extremely foul language—even when directed at a supervisor's family members—is sufficient to take the speech outside of the NLRA's protection. In evaluating whether conduct is so opprobrious that it loses NLRA protection, courts may consider whether profanity is commonplace in that workplace. Courts will also likely draw a distinction between opprobrious conduct that occurs in real time before customers or colleagues and conduct that occurs on social media, with greater tolerance for the latter.
Lindsey A. White is an attorney with Shawe & Rosenthal LLP, the Worklaw® Network member firm in Baltimore.
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