Second Circuit Identifies Outer Limits of NLRA-Protected Speech

The National Labor Relations Act (NLRA) generally prohibits employers from retaliating against employees based on their union-related activities or for taking concerted action to improve the terms and conditions of their employment, even in the absence of a union. But an employee can lose the protection of the NLRA if he or she acts in an abusive manner or engages in opprobrious conduct. The Second Circuit Court of Appeals (whose decisions are binding in Connecticut) recently considered where to draw the line between protected and unprotected activity.

In National Labor Relations Board v. Pier Sixty, LLC, a server at a catering company was one of many service employees seeking union representation despite management’s threats of discharge or penalty. Two days before the vote to unionize was to take place, the employee became upset over the way his supervisor had spoken to him at a catering event, and during his break he posted a message on his Facebook page that stated that the supervisor was “such a NASTY MOTHER-[EXPLETIVE] don’t know how to talk to people!!!!!!” [Expletive] his mother and his entire [expletive] family!!!! What a LOSER!!!!” The post also exhorted employees to “Vote “YES” for the UNION!!!!!!!” The employee took the post down three days later but management had already read it. The employee was fired shortly thereafter and he filed charges with the National Labor Relations Board (NLRB) alleging that he was terminated in retaliation for protected concerted activities in violation of the NLRA.

After decisions by the Administrative Law Judge and the NLRB in favor of the employee, the case made its way to the Second Circuit, which also found that the employee’s Facebook message was not so egregious as to lose the protection of the NLRA. In reaching its conclusion, the court relied heavily on the NLRB’s factual findings and interpretation of the NLRA, but it also determined that the post was “vulgar and inappropriate” and sat at the “outer-bounds of protected, union-related comments.” The court cited the following factors in support of its decision:

  • The subject matter of the post included workplace concerns, particularly the employer’s treatment of its employees and the union election, and was part of a larger debate over managerial mistreatment prior to a union election.
  • The employer consistently tolerated profanity by its workers and had never terminated an employee for the use of offensive language. The court also found that even though the employee cursed the supervisor’s family, these slurs were really directed at the supervisor himself.
  • The comments were not made in the immediate presence of customers and did not disrupt the catering event. The court also found it significant that the employee asserted that he had thought the post was private and took it down once he had learned that it was publicly accessible.

The bottom line? While concerted activity regarding the terms and conditions of employment-- even if rude, belligerent and overbearing-- is generally protected under the NLRA, Pier Sixty is significant because it recognizes a limit on just how vulgar an employee’s speech can be before it loses the NLRA’s protection. An employer on the receiving end of abusive language by an employee is well-advised to evaluate the comments in light of the factors that the Second Circuit articulated in Pier Sixty, including whether the remarks were intended to improve the terms and conditions of employment (with or without a union); how the comments were made (publicly, privately or online); and the nature of the impropriety (including how the language compares with that of other employees in the workplace and how it measures up against the employee’s Facebook post in Pier Sixty). And if the employer suspects that the speech may not be protected by the NLRA, it should proceed with caution and consult with counsel prior to taking a negative employment action against the offending employee.

The opinion can be found here

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