NLRB Shields Online Rants

To some, a recent labor board ruling about social media marks the end of workplace civility. To others, it's a boost to protected speech.

The National Labor Relations Board (NLRB) concluded in a recent case that a New York catering company was wrong to fire a worker who posted an expletive-filled rant on Facebook against his boss and his boss' family. See, Pier Sixty, 02-CA-068612 (March 31, 2015).

The Board's decision was the latest in a series of controversial labor rulings about what speech on social media is protected as “concerted” employee activity. It's a rapidly evolving area of oversight ' the NLRB issued its first Facebook-related decision in September 2012 ' and some lawyers say the agency went too far this time.

“It's crazy to me that this could be tolerated,” says Eric Meyer, a labor and employment partner at Dilworth Paxson, who chairs the firm's social media practice. “These were blatant attacks on a supervisor and a supervisor's family. There's got to be a line.”

The case began in October 2011, when Hernan Perez, the employee, was working as a food server at Pier Sixty along the Hudson River in New York City. Two days before company workers prepared to vote on unionizing, Perez had a run-in with his supervisor, Robert McSweeney, who used a “raised, harsh tone” in ordering the waiters to spread out.

Perez, upset, took a break outside. He used his iPhone to post on Facebook that “Bob is such a NASTY MOTHER FUCKER dont know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

Perez was fired. “It was an over-the-top comment. You can't have a workplace where you essentially accept language of that degree,” says Jackson Lewis partner Thomas Gibbons, who represented Pier Sixty. “If that's tolerated, what's not?”

The NLRB didn't see it that way. Chairman Mark Gaston Pearce and Commissioner Lauren McFerran ruled the firing was illegal. They upheld a decision by administrative law judge Lauren Esposito.

The key to the Board's decision: The commissioners found that Perez's Facebook post “asserted mistreatment of employees” ' a protected category of speech under the National Labor Relations Act (NLRA) ' by alleging that McSweeney didn't know how to talk to the workers. Indeed, one of the main concerns driving the Pier Sixty unionization campaign was “what employees perceived as management's hostile and degrading treatment,” the NLRB majority found.

Moreover, Perez urged his Facebook friends, who included co-workers, to vote yes for the union. “One take-away from the decision is that if you put '#Union,' it insulates the entire post,” says Cozen O'Connor labor and employment partner Michael Schmidt.

As for the foul language, the NLRB majority was swayed by what it said was the prevalence of profanity at Pier Sixty. “We do not view Perez' use of this profanity to be qualitatively different from profanity regularly tolerated by the respondent,” the majority wrote. “Nor was Perez' reference to McSweeney's family beyond the [A]ct's protection,” they held, viewing the slur as directed toward McSweeney himself.

Pier Sixty counsel Gibbons disagrees: “It's one thing to drop a plate and say 'Oh fuck,' and another to say 'Fuck your entire family.'”

Republican NLRB Commissioner Harry Johnson III dissented. “My colleagues recast an outrageous, individualized griping episode as a protected activity,” Johnson wrote. “It serves no discernible purpose for the [B]oard to stretch beyond reason to protect beyond-the-pale behavior that happens to overlap with protected activity. It certainly does not serve the goal of labor peace.”

Gibbons says Pier Sixty has not yet decided whether to appeal the ruling.

A case that raises similar issues is now pending in the U.S. Court of Appeals for the Second Circuit. See, Three D, LLC, DBA Triple Play Sports Bar and Grille v. NLRB, Docket Nos. 14-3284(L), 14-3814(XAP).

In that case, the agency found two workers at Triple Play Sports Bar and Grille in Watertown, CT, were wrongly fired for complaining on Facebook about how the owner handled employee payroll tax withholdings. One worker, a waitress, posted a comment calling the owner an “asshole.” Another, a cook, “liked” the post before the waitress made her comment.

The bar owner said the workers were disloyal and fired them.

Like 93% of the private sector, the Triple Play bar is not unionized. But NLRB labor laws still apply.

“Employees have the right to communicate regarding terms and conditions of employment with each other and with the public, with certain narrowly-construed exceptions,” NLRB lawyers wrote in a brief filed on April 13.

The workers' comments, “though harsh, were part of a Facebook discussion directly related to the ongoing labor dispute,” the brief states. “Communication is not disloyal if its primary purpose is to improve terms and conditions of employment.”

To Stuart Buttrick, who leads the labor management relations team at Faegre Baker Daniels, the NLRB is using social media-related cases as an opportunity to stay relevant in nonunionized workplaces. “Employers otherwise blissfully unaware of obligations under the [NLRA] now have to pay attention to it,” he said. “They have to consider what to do about employees on social media.”

Stephanie Caffera, a labor and employment partner at Nixon Peabody, says one legacy of the NLRB policies may be the demise of workplace civility: “This [B]oard has made it nearly impossible to enforce policies requiring people to behave in a respectful manner in the workplace.”

Jenna Greene writes for The National Law Journal, an ALM sibling of Internet Law & Strategy. She can be reached at [email protected].

To some, a recent labor board ruling about social media marks the end of workplace civility. To others, it's a boost to protected speech.

The National Labor Relations Board (NLRB) concluded in a recent case that a New York catering company was wrong to fire a worker who posted an expletive-filled rant on Facebook against his boss and his boss' family. See, Pier Sixty, 02-CA-068612 (March 31, 2015).

The Board's decision was the latest in a series of controversial labor rulings about what speech on social media is protected as “concerted” employee activity. It's a rapidly evolving area of oversight ' the NLRB issued its first Facebook-related decision in September 2012 ' and some lawyers say the agency went too far this time.

“It's crazy to me that this could be tolerated,” says Eric Meyer, a labor and employment partner at Dilworth Paxson, who chairs the firm's social media practice. “These were blatant attacks on a supervisor and a supervisor's family. There's got to be a line.”

The case began in October 2011, when Hernan Perez, the employee, was working as a food server at Pier Sixty along the Hudson River in New York City. Two days before company workers prepared to vote on unionizing, Perez had a run-in with his supervisor, Robert McSweeney, who used a “raised, harsh tone” in ordering the waiters to spread out.

Perez, upset, took a break outside. He used his iPhone to post on Facebook that “Bob is such a NASTY MOTHER FUCKER dont know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

Perez was fired. “It was an over-the-top comment. You can't have a workplace where you essentially accept language of that degree,” says Jackson Lewis partner Thomas Gibbons, who represented Pier Sixty. “If that's tolerated, what's not?”

The NLRB didn't see it that way. Chairman Mark Gaston Pearce and Commissioner Lauren McFerran ruled the firing was illegal. They upheld a decision by administrative law judge Lauren Esposito.

The key to the Board's decision: The commissioners found that Perez's Facebook post “asserted mistreatment of employees” ' a protected category of speech under the National Labor Relations Act (NLRA) ' by alleging that McSweeney didn't know how to talk to the workers. Indeed, one of the main concerns driving the Pier Sixty unionization campaign was “what employees perceived as management's hostile and degrading treatment,” the NLRB majority found.

Moreover, Perez urged his Facebook friends, who included co-workers, to vote yes for the union. “One take-away from the decision is that if you put '#Union,' it insulates the entire post,” says Cozen O'Connor labor and employment partner Michael Schmidt.

As for the foul language, the NLRB majority was swayed by what it said was the prevalence of profanity at Pier Sixty. “We do not view Perez' use of this profanity to be qualitatively different from profanity regularly tolerated by the respondent,” the majority wrote. “Nor was Perez' reference to McSweeney's family beyond the [A]ct's protection,” they held, viewing the slur as directed toward McSweeney himself.

Pier Sixty counsel Gibbons disagrees: “It's one thing to drop a plate and say 'Oh fuck,' and another to say 'Fuck your entire family.'”

Republican NLRB Commissioner Harry Johnson III dissented. “My colleagues recast an outrageous, individualized griping episode as a protected activity,” Johnson wrote. “It serves no discernible purpose for the [B]oard to stretch beyond reason to protect beyond-the-pale behavior that happens to overlap with protected activity. It certainly does not serve the goal of labor peace.”

Gibbons says Pier Sixty has not yet decided whether to appeal the ruling.

A case that raises similar issues is now pending in the U.S. Court of Appeals for the Second Circuit. See, Three D, LLC, DBA Triple Play Sports Bar and Grille v. NLRB, Docket Nos. 14-3284(L), 14-3814(XAP).

In that case, the agency found two workers at Triple Play Sports Bar and Grille in Watertown, CT, were wrongly fired for complaining on Facebook about how the owner handled employee payroll tax withholdings. One worker, a waitress, posted a comment calling the owner an “asshole.” Another, a cook, “liked” the post before the waitress made her comment.

The bar owner said the workers were disloyal and fired them.

Like 93% of the private sector, the Triple Play bar is not unionized. But NLRB labor laws still apply.

“Employees have the right to communicate regarding terms and conditions of employment with each other and with the public, with certain narrowly-construed exceptions,” NLRB lawyers wrote in a brief filed on April 13.

The workers' comments, “though harsh, were part of a Facebook discussion directly related to the ongoing labor dispute,” the brief states. “Communication is not disloyal if its primary purpose is to improve terms and conditions of employment.”

To Stuart Buttrick, who leads the labor management relations team at Faegre Baker Daniels, the NLRB is using social media-related cases as an opportunity to stay relevant in nonunionized workplaces. “Employers otherwise blissfully unaware of obligations under the [NLRA] now have to pay attention to it,” he said. “They have to consider what to do about employees on social media.”

Stephanie Caffera, a labor and employment partner at Nixon Peabody, says one legacy of the NLRB policies may be the demise of workplace civility: “This [B]oard has made it nearly impossible to enforce policies requiring people to behave in a respectful manner in the workplace.”

Jenna Greene writes for The National Law Journal, an ALM sibling of Internet Law & Strategy. She can be reached at [email protected].