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Media Alerts - National Labor Relations Board v. Pier Sixty, LLC - Second Circuit
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April 24, 2017
  National Labor Relations Board v. Pier Sixty, LLC - Second Circuit
Headline: Second Circuit Grants Enforces National Labor Relations Board Order Protecting Employee From Firing, Finding Employee's Facebook Post Prior to Election to Unionize Was Not So "Opprobrious" as to Warrant Losing National Labor Relations Act Protection

Area of Law: Labor Law

Issues Presented: Whether an employee's comments on social media, that lead to his firing, were so "opprobrious" as to lose protection under the National Labor Relations Act.

Brief Summary: In October 2011, two days before a tense election to unionize Respondent and Cross-Petitioner Pier Sixty, a New York catering company, one of its service employees, Petitioner and Cross-Respondent Hernan Perez, posted a message on his Facebook page using profanity about his Pier Sixty supervisor, and his supervisor's family, and encouraging employees to vote yes for the union. Perez took down the post three days later but it had already come to the attention of Pier Sixty management which, following an investigation, fired Perez in early November. Mr. Perez filed a charge with the National Labor Relations Board (NLRB) claiming he had been terminated in retaliation for "protected concerted activities" under the National Labor Relations Act (NLRA).

Following a decision by the Administrative Law Judge, the NLRB found that Mr. Perez's activity was protected under NLRA sections 8(a)(1) and (a)(3) and his termination was in retaliation for "protected concerted activities." The Second Circuit affirmed, holding that viewing the "totality of the circumstances," including Pier Sixty's "hostility towards employees' union activities" prior to and around the time of the post, and Pier Sixty's historical general tolerance of profanity by its employers, Perez's post "not so egregious as to lose" NLRA protection. The Second Circuit also held that Pier Sixty could not challenge the enforcement of the NLRB's decision on the basis that the Acting General Counsel of the NLRB was in violation of the Federal Vacancies Report Act because the employer never presented this issue to the NLRB, as required by Section 10(e) of the NLRA.

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...66497/1/hilite/


Extended Summary: Respondent and Cross-Petitioner Pier Sixty, LLC ("Pier Sixty") is a catering company in New York. Following a contentious lead up to the election between management and its employees, Pier Sixty's service employees voted to unionize in October 2011. Two days before the election, while on an authorized break at work, Pier Sixty employee, Petitioner and Cross-Respondent Hernan Perez, posted on his personal Facebook account using profanity in talking about his supervisor and supervisor's family. His post also stated "vote YES for the union!!!!!!!" Perez took down the post three days later but it had already come to the attention of Pier Sixty management which, following an investigation, fired Perez in early November.

Perez filed a charge with the National Labor Relations Board ("NLRB") alleging that he had been terminated in retaliation for "protected concerted activities" in violation of the National Labor Relations Act ("NLRA"). That charge was subsequently consolidated with a second charge alleging unfair labor practices under the NLRA. The Administrative Law Judge ("ALJ") who heard the matter found that Pier Sixty violated the NLRA by discharging Perez in retaliation for a protected activity under Act sections 8(a)(1) and (a)(3). Pier Sixty filed exceptions, a three-member panel of the NLRB affirmed the ALJ decision, and Pier Sixty appealed.

As an initial matter, the Second Circuit rejected Pier Sixty's contention that the Acting General Counsel of the NLRB, Lafe Solomon, was in violation of the Federal Vacancies Report Act ("FVRA") of 1998, 5 U.S.C. ยง 3345, and therefore his signing of the complaint in this case rendered the NLRB decision unenforceable. Pursuant to Section 10(e) of the NLRA, all objections must be considered by the NLRB before appeal, unless the failure to do so is excused by extraordinary circumstances. In this instance, Pier Sixty had failed to raise this argument before the NLRB and Second Circuit held that no extraordinary circumstances existed to excuse that failure, stating that a potential meritorious claim does not alone create an extraordinary circumstance.

The Second Circuit next examined whether Perez's activity was protected under the NLRA. Section 7 of this NLRA guarantees employees the right "to engage in concerned activities for the purpose of collective bargaining or other mutual aid or protection." These rights are protected by Sections 8(a)(1) and (a)(3) of the NLRA, which prohibit an employer from discharging employees for participating in protected, union-related activity under Section 7. However, the NLRA will not protect against an employee engaged in an ostensibly protected activity if that employees acts in an abusive manner.

Noting that substantial deference must be given to the NLRB decision, the Second Circuit examined, without endorsing, the nine-factor totality of the circumstances applied by the NLRB test to determine whether Mr. Perez's Facebook post was protected under the NLRA. The Second Circuit thus examined: (1) any evidence of anti-union hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the content; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense.

The Second Circuit affirmed, holding that the NLRB's decision that Perez's activity was protected under the NLRA was supported by the evidence. In so holding the court noted that Perez's Facebook post included work place concerns, that Pier Sixty had demonstrated hostility towards its employees' union activities immediately prior to Perez's Facebook post, and Perez's Facebook post explicitly protested mistreatment by management and asked employees to vote yes for the union. On this basis, the Second Circuit found, the NLRB reasonably determined that Perez's outburst was not "an idiosyncratic reaction to a manger's request but part of a tense debate over managerial mistreatment in the period before the representation election." The Second Circuit also noted that Pier Sixty consistently tolerated profanity among its workers with few disciplinary sanctions given for the use of profanity, that Perez's comments were made on an online forum, a key medium and tool for worker organization, and that Perez's outburst was not in the immediate presence of customers and did not disrupt any catering event. Accordingly, the Second Circuit held that the NLRB did not err in ruling that Perez's Facebook post was not so egregious as to exceed the NLRA's protection and was reasonably distinguished from other cases of "opprobrious conduct."

To read the full decision, please visit:
http://www.ca2.uscourts.gov/de...66497/1/hilite/


Panel: Circuit Judges Kearse, Cabranes, and Chin

Argument Date: 4/5/2016

Date of Issued Opinion: 4/21/2017

Docket Numbers:
15-1841-ag(L), 15-1962-ag(XAP)

Decided: Granted the Board's application for enforcement; Denied Pier Sixty's cross-petition for review

Case Alert Author:
Leigh G. Wellington

Counsel: Thomas V. Walsh, Jackson Lewis P.C., for Respondent - Cross-Petitioner; Benjamin M. Shultz and Scott R. McIntosh for Benjamin C. Mizer, Principal Deputy Assistant Attorney General, U.S. Department of Justice, Civil Division, Amy H. Ginn, Attorney (Jennifer Abruzzo, Deputy General Counsel; John H. Ferguson, Associate General Counsel; Usha Dheena, Supervisor Attorney) for Richard F. Griffin, Jr., General Counsel, National Labor Relations Board, for Petitioner - Cross-Respondent

Author of Opinion:
Circuit Judge Cabranes

Circuit:
Second Circuit

Case Alert Circuit Supervisor:
Professor Elyse Diamond

    Posted By: Elyse Diamond @ 04/24/2017 08:52 AM     2nd Circuit  

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