NLRB v. Pier Sixty, LLC - 855 F.3d 115 (2d Cir. 2017)

Rule:

The National Labor Relations Act (NLRA) generally prohibits employers from discharging an employee for concerted or union-related activity. Specifically, NLRA § 7 (29 U.S.C.S. § 157) guarantees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Determining whether an activity falls within the meaning of § 7 is a task that implicates the National Labor Relations Board's expertise in labor relations and is for the Board to perform in the first instance.

Facts:

Two days before the election which would decide if Pier Sixty employees would be able to unionize, Hernan Perez, a server at a Pier Sixty venue, posted a Facebook post stating that his supervisor was “nasty.” The Facebook post also contained a message urging his coworkers to “vote yes for the union.” Following an investigation, the management of Pier Sixty fired Perez. Consequently, Perez filed a charge with the NLRB alleging that he had been terminated in retaliation for protected concerted activities. Subsequently, Evelyn Gonzalez, who had led organizing efforts at Pier Sixty, filed a second charge, alleging various unfair labor practices in violation of Section 8(a)(1) of the NLRA. The NLRB consolidated the two charges. The presiding Administrative Law Judge (“ALJ”) issued a decision finding that Pier Sixty had violated Sections 8(a)(1) and 8(a)(3) of the NLRA by discharging Perez in retaliation for protected activity. The NLRB filed an application for enforcement, and Pier Sixty filed a cross-petition for review. 

Issue:

Under the circumstances, did the employer discharge the employee in retaliation for a protected activity, thereby rendering the employer liable under 29 U.S.C.S. § 158(a)(1), (3)? 

Answer:

Yes.

Conclusion:

The Court held that the NLRB did not err in concluding the employer violated 29 U.S.C.S. § 158(a)(1), (3) by discharging an employee in retaliation for a social media post urging other workers to vote for the union, which, under a totality of the circumstances test, was not egregious in using vulgar language about a supervisor and qualified as protected activity under 29 U.S.C.S. § 157 because the vulgarity was not in the presence of customers and was not disruptive to the workplace, in light of evidence that profane language was commonly used in the workplace and that the employer had a long history of tolerating profanity among its workers.