The U.S. Court of Appeals for the Second Circuit recently affirmed the determination of the National Labor Relations Board (NLRB) in NLRB v. Pier Sixty, LLC, a case involving the boundaries of union-related activity protected under the National Labor Relations Act (NLRA). In its April 21, 2017 decision, the Second Circuit held that Pier Sixty, LLC, had violated the NLRA when it terminated an employee over his union-related Facebook post, even though the post used obscenities and disparaged the employee’s supervisor.
The NLRB is a federal agency tasked with the “prevention of statutorily defined unfair labor practices on the part of employers and labor organizations” and is authorized to investigate, prosecute, and adjudicate claims of unfair labor practices. The agency was created by the NLRA, a federal labor law passed in 1935 which protects the rights of employees to organize, engage in collective bargaining, and participate in other union-related activities. The NLRA prohibits an employer from terminating an employee based on “protected concerted activity,” a term referring to employees working together to improve the terms and conditions of their employment—for example, attempting to form a union, discussing pay and safety concerns with other workers, and making complaints about workplace conditions. However, there are exceptions if an employee’s behavior is found to be so “opprobrious” that it no longer falls within the NLRA’s protections. Though the NLRA generally protects union-related activity, “even an employee engaged in ostensibly protected activity may act ‘in such an abusive manner that he loses the protection’ of the NLRA.”
In NLRB v. Pier Sixty, employees at Pier Sixty, a New York–based catering company, began seeking union representation in 2011. In late October 2011, the employees ultimately voted to unionize after a contentious organizing campaign involving “threats from management that employees could be penalized or discharged for union activities” (which Pier Sixty did not contest violated the NLRA). A few days before the union election, Hernan Perez, a Pier Sixty server, posted an angry, derogatory message about his supervisor, Robert McSweeney, on his Facebook page after McSweeney spoke harshly to a group of Pier Sixty employees. Shortly afterward, Perez, viewing McSweeney’s behavior as “the latest instance of the management’s continuing disrespect for employees,” wrote the Facebook post, which read, “Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”