By: Claudia D. Orr
Any of you who have been in a contentious union drive know how heated things can become. In National Labor Relations Board v. Pier Sixty, LLC, 855 F.3d 115 (2nd Cir. 2017), the Second Circuit reviewed some fairly egregious postings by an employee on social media and found it to be protected concerted activity under the National Labor Relations Act (“NLRA”). If you have a non-union workplace, don’t stop reading. The activity reviewed below does not need to occur during a union drive or even in a union shop. Concerted activity is protected under the NLRA in a non-union workplace, including your company, so it is important for you to understand just how broad concerted rights are.
For any reader who is not familiar with protected “concerted” activity under the NLRA, it allows 2 or more employees to take action for their mutual aid or protection regarding terms and conditions of employment. Under the Obama administration, there was an advice memorandum issued by the National Labor Relations Board’s (“NLRB”) Acting General Counsel that greatly expanded how concerted activity should be viewed under the NLRA. It was shocking to many and resulted in most employers revising their policies concerning confidentiality, social media, use of company email and electronic information systems, and privacy. Much of the challenge in the instant case concerned whether the General Counsel’s appointment had been proper under the Federal Vacancies Reform Act. But that will not be reviewed in this article.
Pier Sixty is a catering company in New York City. In early 2011, many Pier Sixty employees began seeking union representation. The union drive was exceptionally tense and included threats from management that employees who engaged in union activity were putting their jobs on the line. The company also told employees that if a union was voted in “bargaining would start from scratch” (meaning the employees would have to negotiate to secure their current pay and benefits) and it enforced its “no talk rule” in a discriminatory manner against the union supporters. No one contests that the company’s actions were an unfair labor practice. Clearly they were.
Two days before the election, during an event, Supervisor Bob McSweeney gave Perez and two other servers directions in a harsh tone, ordering them to stop talking, turn their heads towards the guests, “spread out and move, move.” Perez took offense and posted the following message on Facebook 45 minutes later: “Bob is such a NASTY MOTHER F—ER don’t [sic] know how to talk to people!!!!!! F–k his mother and his entire f—ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Ten of Perez’s “friends” on Facebook were coworkers and he knew they would see his post. Perez took down the post 3 days later. However, because the post had also been accessible to the public it came to management’s attention, and Perez was fired.
Later that day, Perez filed an unfair labor practice charge with the NLRB. A coworker who had led the union drive filed one a month or so later and the charges were eventually consolidated. The NLRB administrative law judge (“ALJ”) reviewing the charges found that Pier Sixty had violated Section 8(a) of the NLRA when it fired Perez in retaliation for protected concerted activity. Pier Sixty filed exceptions to the rulings and a three-member panel of the NLRB affirmed the ALJ’s decision, with one dissent. The NLRB filed an application for enforcement with the Second Circuit and Pier Sixty also sought review.
The issue presented to the court: “was Perez’s Facebook post so ‘opprobrious’ as to lose the protection that the NLRA affords union-related speech?” For those of you who, like me, are not familiar with the term opprobrious, it means expressing scorn, contempt or criticism in an abusive, venomous, insulting manner. There has been a four factor test from Atlantic Steel, 245 NLRB 814, 816 (1979), used when examining an employee’s use of obscenities in the workplace: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.”
Because the Atlantic Steel test had come under fire recently, the NLRB modified it to the “totality of circumstances” test that focuses on nine factors: (1) any evidence of antiunion 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 content; (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. This is the test that the NLRB applied in affirming the ALJ in the instant case. The Second Circuit expressed some concern about the totality of the circumstances test since it may not properly balance the employer’s interests, but Pier Sixty had failed to object to its use, so the court did not address the issue further. By the way, the current Sixth Circuit Court of Appeals, which hears appeals of federal claims arising in Michigan, tends to favor the employees, so don’t think that a different result would occur for a Michigan employer.
The Second Circuit found the subject mater to focus on workplace concerns: the disrespect of management towards employees and the upcoming union election. It also found that Pier Sixty had consistently tolerated the use of similar profanity in the workplace. The slurs could be viewed as against McSweeney, rather than his family. (I view this as perhaps being similar to f–k you and the horse you rode in on … it is really about the rider, not the horse … but I digress.) The court didn’t use my analogy, but found that all over the world groups of people find ways to insult mothers as a means of insulting the child. (Quite frankly, I like my analogy better.)
The court then found that social media is a primary means of communication for union organization in the modern world and, while it was visible to the whole world (for a few days), it was not evident to the guests at the event and did not disrupt the event. In sum, the court agreed with the ALJ. Perez’s behavior was not so egregious to deserve discharge, even though it seemed to “sit at the outer-bounds of protected, union-related comments…”
So, what is the take away? First, you may want to consider the language that you are permitting in the workplace. If you generally allow the F-bomb, you will likely need to tolerate such expressions under circumstances that you would prefer not. Second, if you have a union drive, you need to engage experienced labor attorneys right away to guide you on lawful countermeasures. Clearly Pier Sixty crossed the line in numerous ways. Third, for the most part, you should stay out of your employees’ social media posts. While there are exceptions to this rule, I generally recommend that you allow your attorney to snoop, not you. Keep in mind that the Michigan Social Media Privacy Act greatly restricts an employer’s ability to snoop on private pages (i.e., the employer can’t require passwords or the opportunity to view private pages and, seriously, your supervisors/managers should not be sending “friend requests” to subordinates). Finally, recognize that the right of employees to engage in concerted activities applies to your non-union employees. So, if you have not had the policies identified above reviewed by experienced employment counsel, such as the author, you should. They may be per se violations.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2017.