Court says it’s OK to call boss ‘nasty motherf–ker’ during union battle
New York Post, By Chris Perez
Calling your boss a “nasty motherf–ker” is totally cool — as long as you’re trying to form a union.
By Adam C. Abrahms & Christina C. Rentz on April 27, 2017
POSTED IN SOCIAL MEDIA
In NLRB v. Pier Sixty, LLC, the Second Circuit held that an employee’s expletive-laden Facebook post – which hurled vulgar attacks at his manager, his manager’s mother and his family – did not result in the employee losing the protection of the National Labor Relations Act (“Act”). But even though the Second Circuit conferred protected status on this unquestionably obscene post, it did not create a protected right to level profane verbal assaults on management when discussing union business. Such conduct has been, and will continue to be, unprotected in most circumstances. Nevertheless, this case acts as an important reminder for employers: if they choose to allow vulgar conduct in the workplace when it does not pertain to union activity, they must also allow it when it does.
A Pier Sixty Employee Posted an Obscene, Pro-Union Facebook Message in Response to Management’s Alleged Disrespect
Pier Sixty operates a catering company in New York, New York. In 2011, its employees embarked on a tense organizing campaign during which management allegedly threatened employees with discipline for union activity, disparately enforced a no-talk rule and told employees “bargaining would start from scratch” if they voted to unionize. Two days before the election, Hernan Perez, a server employed by Pier Sixty, posted a vulgar Facebook message after his supervisor gave him instructions in a tone that Perez perceived to be disrespectful. That post read:
"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."
The Facebook post was accessible by Perez’s Facebook friends, which included 10 coworkers, and by the public, although Perez insisted he did not know that at the time. Perez deleted the post three days later, but Pier Sixty management had already learned about it and, after conducting an investigation, terminated Perez.
Perez’s Facebook Post Constituted Protected Activity Because Pier Sixty Routinely Tolerated Similarly Profane Outbursts from Employees
The Second Circuit ultimately concluded that Perez’s Facebook post constituted protected activity because Pier Sixty routinely permitted vulgarities in the workplace. Notwithstanding the profane language, Perez’s post “explicitly protested” management’s mistreatment and “exhorted employees to ‘Vote YES,’” while Pier Sixty’s anti-union animus was uncontested. Given these circumstances, “the Board could reasonably determine that Perez’s outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.” Moreover, Pier Sixty consistently tolerated “widespread profanity in the workplace,” and both management and employees used “daily obscenities” without consequence. In the six years preceding Perez’s termination, there had only been five written warnings issued for such language and no terminations – until Perez. The Second Circuit noted that “it is striking that Perez – who had been a server at Pier Sixty for thirteen years – was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity.”
The Second Circuit also found the manner in which Perez communicated his ire to be significant. Social media is a “key medium of communication among coworkers and a tool for organization in modern era,” and, despite publicly posting the message, Perez’s outburst did not occur “in the immediate presence of customers nor did it disrupt the catering event.” Thus, the Court found the post to be distinguishable from other “opprobrious conduct” cases it had considered.
Notably, although the Second Circuit deemed Perez’s post to be protected under the Act, it also cautioned, “this case seems to us to sit at the outer-bounds of protected, union-related comments, and any test for evaluating ‘opprobrious conduct’ must be sufficiently sensitive to employers’ legitimate disciplinary interests.”
Court Questioned the Validity of the Board’s “Totality of the Circumstances” Test
In 2012, the Second Circuit, in NLRB v. Starbucks, 679 F.3d 70 (2012), concluded that the test traditionally employed by the Board to assess whether obscenities uttered in the workplace constitute protected activity – the Atlantic Steel test – did not sufficiently accommodate employers’ legitimate interest in preventing employees’ public outbursts in the presence of customers and remanded the case to the Board to develop “more balanced standards for evaluating ‘opprobrious’ conduct in that context.” The Office of the General Counsel subsequently issued Memorandum OM 12-59, which set forth a nine-factor “totality of the circumstances” test to assess the protected nature of employees’ social media communications, which the Second Circuit characterized as “more employee-friendly.” The Board employed this test in Pier Sixty, LLC, but the Second Circuit questioned the test’s legitimacy, stating that “we are not convinced the amorphous ‘totality of the circumstances’ test adequately balances an employer’s interests…” Ultimately, though, because Pier Sixty did not object to it the Second Circuit applied the test – without sanctioning its validity.
Lessons Learned From Pier Sixty
This case serves as a reminder that employers must take the long view when deciding whether to discipline employees for workplace conduct that is inappropriate but not particularly offensive to the employer. Here, Perez’s posting would have likely fallen outside the bounds of protected activity had Pier Sixty disciplined employees for similar vulgarities in the workplace. However, because Pier Sixty routinely tolerated such conduct from management and employees alike, the Second Circuit could not find that Perez’s conduct was “so egregious as to exceed the NLRA’s protection.”
This case also signals that the Second Circuit, and perhaps other courts, may be willing to abandon the Board’s “totality of the circumstances” test in favor of a standard that better protects employer’s legitimate interests in regulating employees’ workplace conduct. Employers defending cases in which the Board employs this test should vigorously argue that this standard improperly intrudes upon their legitimate business interests.
The NLRB Says My Employee Can Call Me What?
September 2017 by Gary D. Finley
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.
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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