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Second Circuit Defines Outer Limits of “Concerted Protected Activity” Under the NLRA.

Published by and on June 13, 2017

The Second Circuit rules that while employee speech may be protected under the NLRA, this particular Facebook post pushes what should protected speech to the max.

The Second Circuit rules that while employee speech may be protected under the NLRA, this particular Facebook post pushes what should protected speech to the max.

[WARNING: language in contested Facebook post, repeated here, is extreme]

In the Age of the Internet, employers are faced with the difficulty of developing policies addressing employees’ use of social media to disparage their employer. And employers should know by now that those policies must be carefully crafted so as not to infringe or discourage employees from exercising their protected rights under laws like the National Labor Relations Act (“NLRA”). Specifically, the NLRA protects employees’ right to engage in “concerted activity,” which is when two or more employees take action for “the purpose of collective bargaining or other mutual aid or protection” regarding the terms and conditions of employment. 29 U.S.C. § 157. The National Labor Relations Board (“Board”), tasked with enforcing employee rights under the NLRA, recently went to bat and prevailed on behalf of a terminated employee, who was terminated after the employee was highly critical of his supervisor on Facebook.

In NLRB v. Pier Sixty LLC, a server employed by a catering company took to Facebook to express his anger with how his supervisor, Bob, treated him during a catering event. See No. 15-1841 (2d Cir. Apr. 21, 2017). Concurrently, employees of the catering company were attempting to unionize, with the vote scheduled just two days from the catering event and the subsequent Facebook post. Taking to social media to express his displeasure with his supervisor, the employee posted the following to Facebook:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F**k his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Even though the Facebook post was deleted, the catering company became aware of the post and subsequently fired the offending employee. The employee, Hernan Perez, brought an unfair labor practices charge with the Board, stating that he had been discharged in retaliation for engaging in protected concerted activity under the NLRA. Both an administrative law judge (“ALJ”) and the Board found that the employee’s Facebook post was protected under the NLRA. Pier Sixty LLC, the catering company, appealed to the Second Circuit.

In deciding whether the Facebook post was protected under the NLRA, the Second Circuit confronted the following issue: at what point does an employee’s conduct or speech become so “opprobrious,” or so abusive, so as to lose protection under the NLRA? See NLRB v. Starbucks Corp., 679 F.3d 70, 79 (2d Cir. 2012) (stating that an employee can in fact lose protection under the NLRA where the employee’s conduct is opprobrious). Affirming both the ALJ and the Board, the Second Circuit stated that it relied “heavily on the deference afforded to the [Board’s] factual findings,…informed by the specific social and cultural context in this case. We note, however, that [the employee’s] conduct sits at the outer-bounds of protected, union-related comments….”

In considering whether an employee’s conduct or speech remains protected under the NLRA, the Second Circuit used the Board’s newly issued “totality of the circumstances” test applied to social media cases under the NLRA. The Second Circuit, however, did not adopt the Board’s test. Rather, the employer did not challenge the validity of the test, and the Second Circuit found ample factual support for the ALJ and the Board’s finding for Mr. Perez. Namely, the Second Circuit found that the Board’s test did not sufficiently consider the employer’s legitimate interests in maintaining order and respect in the workplace. Nonetheless, the Court deferred to the Board’s judgment. The Board’s nine-factor “totality of the circumstances” test considers the following factors: (1) any evidence of anti-union hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the conduct; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense. Pier Sixty, LLC, 2015 WL 1457688, at *3 (N.L.R.B. Mar. 31, 2015).

The Second Circuit affirmed the ALJ and the Board decisions but noted that Mr. Perez’s conduct pushed the limits of what may be protected concerted activity under the NLRA. The Court went on to distinguish Mr. Perez’s conduct from that which would be unprotected: “…the Board did not err in ruling that Mr. Perez’s Facebook post, although vulgar and inappropriate, was not so egregious as to exceed the NLRA’s protection. Nor was the post equivalent to a ‘public outburst’ in the presence of customers and thus can be reasonably distinguished from other cases of ‘opprobrious conduct.’” The Court further cautioned that any test for evaluating “opprobrious conduct” must be “sufficiently sensitive to employers’ legitimate disciplinary interests….”

Welter Insight

Employers should be sensitive to two things:

  • While the Second Circuit cast doubt on the validity of the “totality of the circumstances” test, the NLRB is likely to continue to use it. Employers would be wise to review the nine factors, should they find a charge levied against them; and
  • Employers should also consider policies that implicate NLRA protected speech and conduct. Social media use, discipline, and termination policies should be reviewed in light of recent Board guidance and decisions regarding both social media and protected employee conduct under the NLRA.
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