Nlra Case Notes
| Jurisdiction | United States,Federal |
| Author | By Richa Amar and Jonathan Cohen |
| Publication year | 2017 |
| Citation | Vol. 31 No. 5 |
By Richa Amar and Jonathan Cohen
Richa Amar is an attorney with the California Teachers Association, a labor union representing 325,000 educators throughout California. Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board.
N.L.R.B. v. Pier Sixty, 855 F.3d 115 (2d Cir. 2017)
In a unanimous decision, the Second Circuit affirmed the National Labor Relations Board's conclusion that an employer violated the NLRA by terminating an employee because of his Facebook post.
In 2011, following an organizing campaign that included management threats that employees could be discharged for union activity, employees of a catering company voted to unionize. Two days before that vote, a supervisor gave an employee, Herman Perez, and two other servers various directions in a harsh tone. Perez later posted to Facebook the following message: "Bob [the supervisor] 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!!!!!!" Perez's post was accessible to at least ten of his co-workers. Although Perez took down the Facebook post three days later, the employer learned about it and terminated Perez.
The court affirmed the Board's conclusion that Perez's Facebook post was not so abusive that he lost the protection of the Act, and that his termination was therefore unlawful. In doing so, the court first observed that there has been recent criticism of the Board's four-factor test in Atlantic Steel, 245 NLRB 814 (1979), for determining whether an employee's use of obscenities in the workplace forfeits the employee's protection under the Act. The court cited its decision in N.L.R.B. v. Starbucks Corp., 679 F.2d 70 (2d Cir. 2012), for its conclusion that the Atlantic Steel test gives "insufficient weight to employers' interests in preventing employees' outbursts 'in a public place in the presence of customers,'" and suggested "more balanced standards for evaluating 'opprobrious' conduct in that context." The court expressed similar reluctance about the nine-factor "totality of the circumstances" test the Board has recently used in social media cases, including this one. Nonetheless, because the employer did not object to the Board's use of that test, the court did not address its validity.
The court cited three factors in upholding the Board's decision. First, it found that Perez's Facebook post was not an "idiosyncratic reaction to a manager's request but part of a tense debate over managerial mistreatment in the period" before the union election. Second, it cited evidence that the employer "consistently tolerated profanity among its workers," and had never terminated an employee solely for the use of offensive language. Third, it acknowledged that "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." The court also emphasized that Perez's post was not "equivalent to a 'public outburst' in the presence of customers" and therefore could be distinguished from other cases involving opprobrious conduct.
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