From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
A catering worker reached “the outer bounds” of protected speech with a vulgarity-laced Facebook post about a supervisor, but the U.S. Court of Appeals for the Second Circuit said the worker could not be fired for his action ( NLRB v. Pier Sixty, LLC , 2017 BL 131230, 2d Cir., No. 15-1841-ag, 4/21/17 ).
The April 21 court decision highlights the need for employers to carefully examine all of the circumstances before concluding that an employee’s social media outburst justifies disciplinary action.
Pier Sixty LLC argued that by lashing out at the supervisor and his family in a message that was accessible to the public, employee Hernan Perez lost the protection of federal labor law. The Second Circuit, however, backed the National Labor Relations Board’s decision that firing Perez was an unfair labor practice.
The NLRB found the employer tolerated profanity, and the board had substantial evidence that Perez was fired because of his union activity and complaints about supervisors abusing workers, Judge José A Cabranes wrote for the court.
The company was disappointed by the NLRB ruling and had hoped the Second Circuit would reject the board’s view of the case, Thomas V. Walsh of Jackson Lewis P.C. in White Plains, N.Y., told Bloomberg BNA April 21. The company is now “exploring our options,” said Walsh, who argued the appeal for Pier Sixty.
The incident occurred in in October 2011, according to the court. Perez became upset when assistant banquet manager Robert McSweeney chided employees in a “raised, harsh tone” about “chitchatting” among themselves as guests arrived at a catered event.
Perez stepped outdoors and used his mobile phone to post a message on Facebook that “Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
The posting—two days before employees voted for union representation—was visible to Perez’s Facebook friends and anyone else who visited his Facebook page. Pier Sixty investigated the posting and fired Perez.
The NLRB found that Perez was illegally fired for a Facebook posting that was “distasteful” but legally protected.
Cabranes said the board used a “totality of the circumstances” analysis that is “amorphous” and may not adequately account for an employer’s legitimate interests. But Pier Sixty didn’t object to the test, Cabranes said, and the appeals court didn’t question it.
Pier Sixty argued that whatever legal test is applied, Perez’s conduct went too far, but the court disagreed.
The court noted, however, that supervisors screamed obscenities at workers and did not fire employees for using offensive language. Cabranes acknowledged “a Facebook post may be visible to the whole world,” but he said Perez’s outburst did not occur “in the immediate presence of customers,” and it did not disrupt any catering events.
Pier Sixty failed to show Perez’s online conduct was egregious enough to forfeit the protection of the National Labor Relations Act, Cabranes said.
Judges Amalya L. Kearse and Denny Chin joined in the opinion.
NLRB attorney Amy H. Ginn in Washington argued for the board.
To contact the reporter on this story: Lawrence E. Dubé in Washington at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/NATIONAL_LABOR_RELATIONS_BOARD_PetitionerCrossRespondent_v_PIER_S.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)