Second Circuit Identifies Outer Limits of NLRA-Protected Speech

by Pullman & Comley - Labor, Employment and Employee Benefits Law

Pullman & Comley - Labor, Employment and Employee Benefits Law

The National Labor Relations Act (NLRA) generally prohibits employers from retaliating against employees based on their union-related activities or for taking concerted action to improve the terms and conditions of their employment, even in the absence of a union. But an employee can lose the protection of the NLRA if he or she acts in an abusive manner or engages in opprobrious conduct. The Second Circuit Court of Appeals (whose decisions are binding in Connecticut) recently considered where to draw the line between protected and unprotected activity.

In National Labor Relations Board v. Pier Sixty, LLC, a server at a catering company was one of many service employees seeking union representation despite management’s threats of discharge or penalty. Two days before the vote to unionize was to take place, the employee became upset over the way his supervisor had spoken to him at a catering event, and during his break he posted a message on his Facebook page that stated that the supervisor was “such a NASTY MOTHER-[EXPLETIVE] don’t know how to talk to people!!!!!!” [Expletive] his mother and his entire [expletive] family!!!! What a LOSER!!!!” The post also exhorted employees to “Vote “YES” for the UNION!!!!!!!” The employee took the post down three days later but management had already read it. The employee was fired shortly thereafter and he filed charges with the National Labor Relations Board (NLRB) alleging that he was terminated in retaliation for protected concerted activities in violation of the NLRA.

After decisions by the Administrative Law Judge and the NLRB in favor of the employee, the case made its way to the Second Circuit, which also found that the employee’s Facebook message was not so egregious as to lose the protection of the NLRA. In reaching its conclusion, the court relied heavily on the NLRB’s factual findings and interpretation of the NLRA, but it also determined that the post was “vulgar and inappropriate” and sat at the “outer-bounds of protected, union-related comments.” The court cited the following factors in support of its decision:

  • The subject matter of the post included workplace concerns, particularly the employer’s treatment of its employees and the union election, and was part of a larger debate over managerial mistreatment prior to a union election.
  • The employer consistently tolerated profanity by its workers and had never terminated an employee for the use of offensive language. The court also found that even though the employee cursed the supervisor’s family, these slurs were really directed at the supervisor himself.
  • The comments were not made in the immediate presence of customers and did not disrupt the catering event. The court also found it significant that the employee asserted that he had thought the post was private and took it down once he had learned that it was publicly accessible.

The bottom line? While concerted activity regarding the terms and conditions of employment– even if rude, belligerent and overbearing– is generally protected under the NLRA, Pier Sixty is significant because it recognizes a limit on just how vulgar an employee’s speech can be before it loses the NLRA’s protection. An employer on the receiving end of abusive language by an employee is well-advised to evaluate the comments in light of the factors that the Second Circuit articulated in Pier Sixty, including whether the remarks were intended to improve the terms and conditions of employment (with or without a union); how the comments were made (publicly, privately or online); and the nature of the impropriety (including how the language compares with that of other employees in the workplace and how it measures up against the employee’s Facebook post in Pier Sixty). And if the employer suspects that the speech may not be protected by the NLRA, it should proceed with caution and consult with counsel prior to taking a negative employment action against the offending employee.

The opinion can be found here

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.

© Pullman & Comley - Labor, Employment and Employee Benefits Law | Attorney Advertising

Written by:

Pullman & Comley - Labor, Employment and Employee Benefits Law

Pullman & Comley - Labor, Employment and Employee Benefits Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.