National Labor Relations Board v. Pier Sixty, LLC
855 F.3d 115
| 2d Cir. | 2017Background
- Pier Sixty is a New York catering employer whose service employees organized and voted to unionize in October 2011 after a contentious campaign.
- Two days before the election, server Hernan Perez posted on Facebook during a break: “Bob is such a NASTY MOTHER FUCKER … Fuck his mother and his entire fucking family!!!! … Vote YES for the UNION!!!!!!!” (Bob = supervisor McSweeney).
- Perez’s post was visible to coworkers (and publicly accessible); he removed it three days later. Management learned of the post and fired Perez on November 9, 2011.
- Perez and a coworker filed unfair labor practice charges; an ALJ found Pier Sixty violated Sections 8(a)(1) and 8(a)(3) by discharging Perez. The NLRB affirmed (one-member partial dissent).
- Pier Sixty sought review in the Second Circuit and also challenged the legitimacy of the Acting General Counsel’s appointment (arguing FVRA invalidity). The Board sought enforcement of its order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Acting General Counsel’s appointment (FVRA) | NLRB: enforcement should proceed; parties must raise procedural objections before Board | Pier Sixty: Solomon served unlawfully under FVRA, so complaint/decision unauthorized | Forfeited – Pier Sixty failed to raise challenge before Board; no extraordinary-circumstance waiver, so court did not reach merits |
| Whether Perez’s Facebook post was protected concerted activity under NLRA | Perez/NLRB: post concerned workplace mistreatment and union solicitation and thus is protected; employer’s uneven enforcement of profanity undermines discipline | Pier Sixty: the post was opprobrious (severe obscenity and family insults, publicly posted) and disrupted operations; lost NLRA protection | NLRB enforcement granted — post not so opprobrious to lose protection under the Board’s totality-of-the-circumstances analysis |
| Standard for evaluating opprobrious conduct on social media | NLRB: apply a totality-of-the-circumstances (multi-factor) test that weighs context, provocation, content, location, employer practice, etc. | Pier Sixty: leaned on Atlantic Steel/concerns about severe insults and public audience; urged weight to employer’s interest in workplace/customer relations | Court accepted Board’s use of the totality test (petitioner did not object to its use before Board) and deferred to Board’s factual findings |
| Deference and standard of review | NLRB: factual findings entitled to substantial-evidence deference; legal conclusions get deference based on agency expertise | Pier Sixty: contended findings insufficient as a matter of law and fact to support protection | Court applied substantial-evidence/considerable-deference standards and upheld the Board’s decision |
Key Cases Cited
- Starbucks Corp. v. NLRB, 679 F.3d 70 (2d Cir. 2012) (criticized Atlantic Steel for underweighting employer interest in public/customer settings)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (standard for substantial-evidence review of agency factfinding)
- NLRB v. Washington Aluminum Co., 370 U.S. 9 (U.S. 1962) (employee conduct may lose NLRA protection if indefensible)
- NLRB v. City Disposal Sys., 465 U.S. 822 (U.S. 1984) (Section 7 determinations implicate NLRB expertise)
- SW Gen., Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015) (challenge to Acting General Counsel’s FVRA service; later affirmed by Supreme Court)
- NLRB v. Thalbo Corp., 171 F.3d 102 (2d Cir. 1999) (deference to ALJ credibility determinations; not overturned absent hopelessly incredible testimony)