Protected Obscenity – Second Circuit Affirms NLRB’s Holding that Employee’s Facebook Posting of Swear Words and Attacks on Supervisor’s Family are Protected Activity Under the NLRA

Employers often struggle to determine whether offensive statements by an employee in the course of union organizing or advocacy are “protected concerted activity” under the National Labor Relations Act (NLRA).  If protected, the employer is prohibited from disciplining the employee for making such statements.  The difficulty arises from the fact that otherwise unprotected statements often also contain references to protected activity, and the difficulty in applying the National Labor Relations Board’s ambiguous tests to such statements.  The challenges employers face was illustrated well in the case of National Labor Relations Board v. Pier Sixty, LLC.

Hernan Perez worked as a server at Pier Sixty, LLC, a catering company in New York City. Perez and other employees of Pier Sixty had petitioned for a union election under the NLRA.  Two days before the scheduled election, Perez’s supervisor – Robert McSweeney – gave Perez and two other servers directions in a “harsh tone” to “stop chitchatting” and “spread out, move, move.”  During his break, Perez posted the following on his Facebook page:

[McSweeney] is such a NASTY MOTHER F_______ don’t know how to
talk to people!!!!!! F___ his mother and his entire f_____ family!!!!
What a LOSER!!!! Vote YES for the UNION!!!!!!!

(obscenities omitted).  Several of Perez’s co-workers were “friends” on Facebook; but Perez’s post was also publicly accessible.  Perez later took down the post several days later, but not before Pier Sixty learned of its existence.  Following an investigation, it terminated Perez.

Perez filed an unfair labor practice charge with the National Labor Relations Board (NLRB) alleging that he had been terminated in retaliation for “protected concerted activities.”  The NLRB found that Perez’s termination for his post was concerted protected activity and ordered Perez’s.  The Court of Appeals for the Second Circuit affirmed the NLRB’s decision, but not without reservation.

As the Court discussed, the National Labor Relations Act (which the NLRB administers) prohibits employers from discharging an employee for concerted or union-related activity.  But even arguably “protected” activity can lose the protection of the NLRA if the employee’s comments are simply a personal gripe or is sufficiently “abusive” or “opprobrious.”  The NLRB concluded that  Perez’s posting was not so abuse or opprobrious to be unprotected.  Ultimately, the Court agreed, but it noted that the NLRB’s analysis had been frequently criticized by other courts as not giving sufficient weight to an employers’ interests; particularly when employment issues were aired in the presence of customers or in a medium customers might access.  Although the Court permitted the NLRB’s ruling to stand, it noted that “this case seems to us to sit at the outer-bounds of protected, union-related comments, and any test for evaluating ‘opprobrious conduct’ must be sufficiently sensitive to employers’ legitimate disciplinary interests.”

The bounds of what the National Labor Relations Board deems “protected activity” remains unsettled, so employers tread carefully when disciplining employees based on statements or comments which arguably fall within the protection of the NLRA; even when such conduct violates otherwise reasonable policies against employee use of obscenities.  However, decisions like Pier Sixty, LLC are a valuable reminder that courts have and likely will continue to scrutinize the NLRB’s “employee-friendly” analysis on these issues.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.