Employer Cannot Fire Employees For Obscenity-Laced Facebook Posts During Union Organizing Campaign

by Tonkon Torp LLP

Tonkon Torp LLP

Section 7 of the National Labor Relations Act protects employees who engage in concerted activities for purposes of collective bargaining or for mutual aid and protection. How far that protection extends was tested in NLRB v. Pier Sixty, LLC, a decision issued by the Second Circuit Court of Appeals (which sits in New York) in an enforcement action by the Board. And the result of that case is chilling for employers.
Pier Sixty operates a catering company in New York. Following a tense organizing campaign, its employees voted to unionize in an October 27, 2011 election. Two days before that election, Hernan Perez was working as a server at a Pier Sixty venue when supervisor Robert McSweeney gave him and his fellow servers directions in a “harsh tone” about how they should stop chitchatting and pay more attention to the guests. During an authorized break from work, Perez used his iPhone to post the following message on his Facebook page, which was accessible to both coworkers and the public: “Bob is such a NASTY MOTHER F&$%#+ don’t know how to talk to people!!!!! F&$% his mother and his entire f&$%#+@ family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!” Pier Sixty learned of the post and fired Perez on November 9, 2011.
Perez filed a ULP charge with the NLRB alleging he had been fired for engaging in protected concerted activities. In a split decision, the Board affirmed the presiding Administrative Law Judge’s finding that Pier Sixty fired Perez for engaging in protected activity. The NLRB brought an enforcement action in the Second Circuit, while Pier Sixty sought review of the ULP finding.
The issue on appeal was whether Perez forfeited his NLRA protections because his post was too “opprobrious.” There was no question that Perez’s post constituted union-related activity that would ordinarily be protected by the NLRA. However, employers have their own interest in preventing vulgar employee outbursts, particularly in the presence of customers. The NLRB applies a “totality of the circumstances” test that considers multiple factors, including whether the employer has displayed other evidence of anti-union hostility, where the conduct occurred, and whether the employer has been consistent in imposing discipline for the same activity in non-union circumstances.
Here, Pier Sixty had threatened to rescind benefits and to fire employees who voted for the union, so it had clearly shown anti-union hostility. Moreover, Pier Sixty consistently tolerated similar profanity by its workers in other contexts. Also, Facebook is a recognized key medium of communication among coworkers and a tool for union organization in the modern era. Thus, Perez did not lose his NLRA protections, although the Court noted that this was at the outer boundaries of protected conduct and close to being sufficiently “opprobrious” so as to forfeit NLRA Section 7 rights.
In light of this decision finding such offensive speech to be protected concerted conduct, employers would be well advised to consult with counsel before firing employees for any work-related postings on social media.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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