In Nat’l Labor Relations Bd. v. Pier Sixty, LLC, No. 15-1841-AG (L), 2017 WL 1445028 (2d Cir. Apr. 21, 2017), as amended (May 9, 2017), the Second Circuit upheld a finding of the National Labor Relations Board (NLRB) that an employer improperly terminated an employee in violation of the National Labor Relations Act (NLRA) for engaging in “protected activity” under that statute.
An employee (Hernan Perez), upset with a supervisor (Bob), wrote the following on his Facebook page:
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! ! ! ! ! ! !
He was fired shortly thereafter.
He then filed a charge with the NLRB alleging that he had been terminated in retaliation for engaging in “protected concerted activity” in violation of the NLRA. The NLRB – employing a nine-factor “totality of the circumstances” test – determined that “Perez’s comments were not so egregious as to exceed the [NLRA]’s protection.”
The Second Circuit agreed, and “affirm[ed] the NLRB’s determination that Pier Sixty violated Sections 8(a)(1) and 8(a)(3) by discharging Hernan Perez since Perez’s conduct was not so ‘opprobrious’ as to lose the protection of the NLRA.”
The court explained the factors supporting its conclusion:
First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, 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 toward employees’ union activities in the period immediately prior to the representation election and proximate to Perez’s post. Pier Sixty had threatened to rescind benefits and/or fire employees who voted for unionization.43 It also had enforced a “no talk” rule on groups of employees, including Perez and Gonzalez, who were prevented by McSweeney from discussing the Union. Perez’s Facebook post explicitly protested mistreatment by management and exhorted employees to “Vote YES for the UNION.”44 Thus, 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.
Second, Pier Sixty consistently tolerated profanity among its workers. The ALJ found that Pier Sixty had not previously disciplined employees for widespread profanity in the workplace, including the words “fuck” and “motherfucker,” among other expletives and racial slurs. The Board relied on evidence that, in the context of daily obscenities, Pier Sixty only issued five written warnings to employees for such an offense in the six years prior to Perez’s discharge. And there was no evidence that Pier Sixty has ever discharged an employee solely for the use of offensive language. The ALJ specifically credited employee testimony that Chef DeMaiolo and McSweeney cursed at employees on a daily basis including screaming phrases such as “What the fuck are you doing?,” “Motherfucker,” and “Are you guys fucking stupid?”45 We recognize that one could draw a distinction between generalized scatology (or even cursing at someone), and, on the other hand, cursing someone’s mother and family.46 But one could reasonably decide, as the ALJ did in this case, that Perez’s comments “were not a slur against McSweeney’s family but, rather, an epithet directed to McSweeney himself.”47 Under the circumstances presented here, 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.
Third, the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event.48 Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible. We thus conclude, according appropriate deference to the Board’s factual findings and interpretation of the NLRA, that the Board did not err in ruling that Perez’s Facebook post, although vulgar and inappropriate, was not so egregious as to exceed the NLRA’s protection. Nor was his Facebook post equivalent to a “public outburst” in the presence of customers and thus can reasonably be distinguished from other cases of “opprobrious conduct.”
The court was careful to note that its “conclusion rests heavily on the deference afforded to NLRB’s interpretation of the NLRA and its factual findings, which, in the instant case, were informed by a six-day bench trial. We note, however, that Perez’s conduct sits at the outer-bounds of protected, union-related comments.”