On Friday, April 21, 2017, the Second Circuit affirmed a National Labor Relations Board (“NLRB”) ruling, which found that Pier Sixty, LLC (“Pier Sixty”) violated the National Labor Relations Act (“NLRA”) when it terminated its employee, Hernan Perez (“Perez”), for comments posted on Facebook.
In 2011, after a supervisor had given directions to Perez and other employees in a “disrespectful” manner, Perez used his iPhone to post a message to his personal Facebook account where he called the supervisor a “nasty mother f*******” and said “f*** his mother and his entire f****** family.” Perez ended his post with “Vote YES for the Union.” The Facebook post came just days before Pier Sixty employees voted to unionize in an October 2011 election.
The post remained on Facebook for three days before Perez removed it. The removal, however, was too little too late. Pier Sixty had already become aware of the profanity-laced post and, following an investigation, terminated Perez on November 9, 2011.
The NLRB, applying a totality of the circumstances test, determined that Perez’s conduct was not “opprobrious” or offensive, and therefore the termination violated Sections 8(a)(1) and 8(a)(3) of the NLRA, which makes it an unlawful for an employer to terminate an employee based on union related activity. On appeal, while giving deference to the NLRB’s findings, the Second Circuit based its affirmance on three main aspects: 1) the subject matter of the message; 2) past practices of Pier Sixty; and 3) the location of the message.
The Court first determined that, even though the post was vulgar, its primary subject matter was of workplace concern. Namely, the Court found that the last five words of the profanity-laced tirade—“Vote YES for the Union”—made the post “part of a tense debate over managerial mistreatment.” Thus, because the comments were not just an “idiosyncratic reaction to a manager’s request,” and rather were connected to the upcoming union election, the subject matter fell within a protected activity under the NLRA.
After finding the subject matter of the post was related to union activities, the Court discussed Pier Sixty’s past practices of tolerating profanity among all employees. The Court noted that there was “widespread” use of profanity among employees and only five written warnings were given to employees for use of profanity prior to Perez’s termination. In fact, there was no evidence presented to the NLRB that any employee was terminated solely for the use of profanity or other offensive language. Based on these past practices, the Court found it “striking” that Perez had been fired for using profanity just days before a Union election was to take place.
Finally, the Court turned to the “location” of the comments – a post on Perez’s public Facebook account. Pier Sixty argued that the comments were made visible to both actual and potential customers, justifying the termination. The Court, however, disagreed. Although customers may have had access to the post, the comments were not made in the “immediate presence” of any customer and did not disrupt any of Pier Sixty’s catering events. Moreover, the Court stated that online forums like Facebook are a “key medium of communication among coworkers” and it acts as a “tool for organization in the modern era.” As such, the Court distinguished the comments from a “public outburst,” finding that the NLRB did not err in determining that the Facebook post was protected activity under the NLRA.
Although the Court recognized that this case was on the “outer-bounds of protected, union-related comments,” the Court’s decision reinforces that employers must be cautious when terminating an employee for speech that is, even loosely, related to protected union activity.