National Labor Relations Board v. Pier Sixty, LLC - Second Circuit Court of Appeals
Facts: Pier Sixty operated a catering company in New York. In early 2011, many of its service employees began seeking union representation. Ultimately, Pier Sixty employees voted to unionize in an October 27, 2011 election. Two days before the election was to occur, Hernan Perez ("Perez") was employed at a Pier Sixty venue as a server. A supervisor, Robert McSweeney ("McSweeney"), gave Perez and two other servers various directions in what was described as a "harsh tone" which Perez viewed as the latest instance of management's continuing disrespect for employees. About 45 minutes later during an authorized break, Perez used his phone to post a message on Facebook in which he called McSweeney a "NASTY MOTHER F*****", used similar language in regard to McSweeney's mother and family, called McSweeney a "LOSER", and ended the post with "Vote YES for the UNION!!!!!!!"
Perez apparently knew his post could be seen by his Facebook "friends" (including ten coworkers) and was also publicly accessible. Perez took the post down three days later, on October 28, 2011. Following an investigation by Pier Sixty management, Perez was fired on November 9, 2011. That same day, Perez filed a charge with the National Labor Relations Board ("NLRB") and alleged he had been terminated in retaliation for "protected concerted activities". On April 18, 2013, the presiding Administrative Law Judge ("ALJ") issued a decision and found that Pier Sixty had violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("NLRA") by discharging Perez in retaliation for protected activity. After Pier Sixty filed exceptions, a three member panel of the NLRB affirmed the ALJ's decision (with one member of the NLRB dissenting). The NLRB subsequently sought an application for enforcement.
Holding: At the outset, the Court of Appeals recognized that the present issue turned on whether Perez's Facebook post was so "opprobrious" as to lose the protection that the NLRA affords union related speech. In this instance, the factual findings of the NLRB would be accepted "if they are supported by substantial evidence in light of the record as a whole." As a result, the NLRB's adoption of the ALJ's credibility determinations will not be disturbed unless "the testimony is hopelessly incredible or the findings flatly contradict either the law of nature or undisputed documentary testimony."
Generally speaking, Sections 8(a)(1) and 8(a)(3) of the NLRA prohibit employers from discharging an employee for engaging in concerted or union related activity. However, an employee engaged in protected activity may lose the protections of the NLRA if the employee engages in such activity in an abusive manner. While there have been different standards applied to whether an employee's uttering obscenities in the workplace qualifies for protection under the NLRA, the Court recognized a more employee-friendly standard had recently been adopted which limited the ability of employers to issue rules regarding use of social media, even where employees were posting public criticisms of their employers and workplace. Consequently, the Court noted that after adopting the ALJ's factual findings, the NLRB analyzed Perez's Facebook post using a nine factor "totality of the circumstances" test. While the Court was not convinced that the "totality of the circumstances" test adequately balances an employer's interests, because Pier Sixty did not object to the ALJ's used of this test in evaluating Perez's statement, the validity of the test was not decided. With that being said, the Court held that the NLRB's decision was justified for three reasons:
- First, although Perez's Facebook message was dominated by vulgar attacks on McSweeney and his family, the "subject matter" of the message centered on workplace concerns (namely management's allegedly disrespectful treatment of employees and the upcoming union election). Pier Sixty was found to have demonstrated hostility towards employees' union activities in the period immediately prior to the representation election and proximate to Perez's post. As a result, the NLRB could have reasonably determined that Perez's outburst was not an idiosyncratic reaction to McSweeney's comments at work, but part of a tense debate over managerial mistreatment in the period before the representation election.
- In addition, Pier Sixty had "consistently" tolerated profanity among its workers. The ALJ found that Pier Sixty had not previously disciplined many employees for widespread profanity in the workplace (including the profanity Perez used in his Facebook post). In fact, Pier Sixty had only issued five written warnings to employees for using such language in the six years prior to Perez's termination. As well, no evidence was found that Pier Sixty had ever terminated an employee solely for the use of offensive language. The Court did acknowledge that while a distinction could be drawn between generalized cursing at someone compared to cursing someone's mother and family, the ALJ in this case found that Perez's comments "were not a slur against McSweeney's family but, rather, an epithet directed to McSweeney himself." The fact that Perez was fired for profanities uttered two days before the election, when no employee had ever before been sanctioned (or fired) for profanity, was especially noteworthy to the Court.
- Finally, the "location" of Perez's comment was noted to be a key medium of communication among coworkers and a tool for organization in the modern era. The Court noted that while the Facebook post was visible to the general public, it was not made in the immediate presence of Pier Sixty customers nor did it disrupt the catering event that evening. As well, once Perez learned that his post was public, he took it off Facebook. Consequently, given the "location" of the comment, it was not held to be so egregious as to exceed the scope of NLRA protection.
Judgment: The Court of Appeals granted the NLRB's petition for enforcement on the grounds that Pier Sixty's termination of its employee because of a Facebook post was not so "opprobrious" as to lose the protection of the NLRA.
The Takeaway: What a case, huh? I think the Court of Appeals grappled with the fact that while the language used by Perez was troubling (if not offensive), the factual findings of the ALJ simply could not be disturbed, based upon the facts and evidence in the record. Readers will note that at several points throughout the opinion, the Court acknowledged that Perez's comment sat "at the outer-bounds of protected, union related comments." However, several things worked against Pier Sixty in this case: The company did not have a track record of disciplining employees (or terminating them) for using profanity at work, Perez's comment was made very close to the actual election (such that it could be viewed as protected activity), and Perez ended the Facebook post with a pro-union message. When considering all these matters as a whole, I think the Court probably got it right when it held it was protected concerted activity under the NLRA.
With that being said, this could create a slippery slope going forward. For instance, I think the Court's attempt to differentiate profanity directed at someone versus profanity directed at someone's family is tenable at best. In this case, I find it hard to follow the Court's reasoning that Perez saying "F*** his [McSweeney's] mother and his entire f****** family" was actually directed at McSweeney and not his family. Call me crazy, but it seems like Perez was attacking both McSweeney and McSweeney's family in that Facebook post. As well, the fact that the Court held that ending the post with "Vote YES for the UNION!!!!!!!" was a sort of "catch all" to qualify the comments as protected concerted activity is somewhat troubling. Granted, this was not what "saved" the comments from being viewed as "opprobrious" and outside the scope of protections afforded by the NLRA, but it lent cover to Perez's comment and gave the ALJ, the NLRB, and the Court additional grounds to find the comment to be protected concerted activity. Going forward, that case is certainly troubling for employers to have to deal with...although again, the Court did acknowledge this case was on the border of acceptable conduct that was still afforded protection by the NLRA. While it might have been a close call, this should still be viewed as a major victory for employees.
Majority Opinion Judge: Judge Cabranes
Date: April 21, 2017
Opinion: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0ahUKEwip8Yeol-jTAhWqqlQKHcVMAFwQFggyMAI&url=http%3A%2F%2Fhr.cch.com%2Feld%2FNLRBPierSixty042117.pdf&usg=AFQjCNH-ToXAlGYiBDdp5O2ok8nvXU1IjA&sig2=7cFXG14NJDJoO9UZC4zkcQ
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