Second Circuit Rules on Bounds of Protected Concerted Activity
Authors: Marc L. Zaken (Stamford), Ashley Totorica (Stamford)
Published Date: May 12, 2017
In a case at the edges of protected employee conduct during a union organizing drive, the Second Circuit Court of Appeals last week found that an employee’s expletive-laden Facebook post cursing out his boss—and his boss’s mother, too—was within the “outer bounds” of “protected concerted activity” under the National Labor Relations Act (NLRA). In addition to making moms everywhere upset so close to Mother’s Day, the court’s decision highlighted the wide latitude given to employee speech, especially when in the heated midst of a unionization campaign.
In the case, National Labor Relations Board v. Pier Sixty LLC, No. 15-1841 (April 21, 2017), a server employed by a catering company became upset at how his manager, Bob, spoke to him during a catered dinner event. The dinner event occurred during a tense union campaign, just two days before the scheduled vote. The server, during one of his breaks at the dinner, used his iPhone to vent about Bob on his Facebook page:
Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F**k his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
The Facebook post (which did not include the family-friendly asterisks) was subsequently deleted by the server, but not before the catering company learned of it and fired the employee. The employee brought an unfair labor practice charge to the National Labor Relations Board (Board), charging that he had been discharged in retaliation for engaging in “protected concerted activities” under the NLRA. An administrative law judge and the Board found that the firing violated the law, holding that the employee had been engaged in protected, concerted activities in his Facebook post. The catering company appealed to the Second Circuit Court of Appeals, which covers New York, Connecticut, and Vermont.
The question for the Second Circuit was whether the employee’s Facebook post, by using profanity and insulting his boss’s mother and family, exceeded the bounds of protection for union-related speech under the NLRA. The NLRA generally prohibits an employer from discharging an employee because of his or her union‐related conduct, but if an employee’s activities or comments are abusive and harmful, such “opprobrious conduct” loses the protection of the NLRA, even if part of union-related activity.
The court acknowledged that the server’s Facebook post was vulgar and inappropriate, but found that it did not cross the line so as to lose protection. But it was close—and the court expressly stated that the post “sits at the outer bounds of protected, union‐related comments.” The court made clear that an employee does not have free license to insult his or her boss’s mother and family without fear of discipline, and the unique circumstances of the case may limit the impact of the court’s decision. Specifically, the court relied upon the fact that the use of profanity was common (and tolerated) in the workplace; the statement was posted online (not a public outburst in front of customers); and the statement was (generally) about workplace conditions/complaints and posted on the eve of a contentious unionization vote.
The impact of the Second Circuit’s decision for employers, especially for those in Connecticut, New York, and Vermont, is to emphasize the careful consideration that should go into a decision to mete out discipline when based upon potentially union-related communications. The court’s ruling however provides some consolation for employers, as it makes clear that there are limits to what is protected communication under the NLRA (even if Bob’s mom in this case unfortunately fell within those limits). In the end, the background of a heated unionization campaign, on the eve of an election, could not be ignored by the court in outlining the fuzzy lines of protected concerted activity.
Marc Zaken is the Managing Shareholder of the Stamford office of Ogletree Deakins. For over 35 years, Marc has exclusively represented management clients in labor and employment law matters. He has defended employers in age, sex, race, disability and other discrimination cases, as well as sexual harassment, wrongful discharge, breach of contract, employment tort and employee benefits litigations in the federal and state courts in Connecticut, New York and throughout the country and has appeared...
Ashley Totorica is an associate in the Stamford office of Ogletree Deakins. His practice encompasses the full range of employment law counseling and litigation. Mr. Totorica defends employers in state and federal courts, as well as in proceedings before state and federal administrative agencies. In addition, he works with employers on matters relating to labor arbitration and union grievances. Mr. Totorica provides advice and counsel to management regarding human resources issues and employment...