Case Information
*1 15-1841-ag (L) v. LLC
In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM Nos. ‐ ‐ ag (L), ‐ ‐ ag (XAP) N ATIONAL L ABOR R ELATIONS B OARD , Petitioner ‐ Cross ‐ Respondent , P IER S IXTY , LLC,
Respondent Cross Petitioner .
On Petition Review Cross Application Enforcement
Order National Labor Relations
A RGUED : A PRIL D ECIDED : A PRIL
Before: K EARSE C ABRANES C HIN Circuit Judges
This case presents two questions. The first is whether respondent forfeited its challenge to the legality the appointment the Acting General Counsel the National Labor Relations Board (the “NLRB” the “Board”). second question is extent which the National Labor Relations Act (the “NLRA”) protects employee’s comments on social media point which employee’s conduct so “opprobrious” as lose NLRA’s protection.
We conclude respondent forfeited challenge Acting Counsel’s appointment by failing raise argument required by § 160(e). We also affirm NLRB’s determination respondent violated Sections 8(a)(1) 8(a)(3) discharging Hernan Perez since Perez’s conduct so “opprobrious” lose protection NLRA. Our decision rests heavily deference afforded NLRB’s factual determinations, found after six ‐ day bench trial informed specific social cultural context case. nonetheless note conduct sits outer ‐ bounds protected, related comments for reasons set forth below.
Accordingly, GRANT application enforcement DENY Sixty’s cross petition review.
T HOMAS V. W ALSH Jackson Lewis P.C., White Plains, NY, Respondent Cross ‐ Petitioner
B ENJAMIN M. S HULTZ Scott R. McIntosh, Attorneys, Appellate Staff, for Benjamin C. Mizer, Principal Deputy Assistant Attorney General, U.S. Department Justice, Civil Division, Washington, DC; A MY H. G INN Attorney (Jennifer Abruzzo, Deputy General Counsel; John H. Ferguson, Associate General Counsel; Linda Dreeben, Deputy Associate General Counsel; Usha Dheenan, Supervisor Attorney), for Richard F. Griffin, Jr., General Counsel, National Labor Relations Board, Washington, DC, Petitioner ‐ Cross ‐ Respondent.
J OSÉ A. C ABRANES Circuit Judge :
This petition enforcement order National Labor Relations (the “Board” “NLRB”) employer ʹ s cross petition review present two questions. first whether employer, Respondent Cross Petitioner LLC (“Pier Sixty”), forfeited challenge legality appointment Acting Counsel NLRB, Lafe Solomon (“Solomon”). argues Solomon, who authorized complaint case, served violation Federal Vacancies Reform Act *4 (the “FVRA”) [1] that complaint therefore issued illegally. Although failed to raise argument before Board, required by Section 10(e) National Labor Relations Act (the “NLRA”), [2] argues may nonetheless consider it on appeal, under “extraordinary circumstances” exception section. second question presented what constitutes
“opprobrious conduct” context an employee’s comments on social media. To be more precise: generally prohibits employers terminating employee based employee’s union related activity. But even employee engaged protected activity “can, opprobrious conduct, lose protection [NLRA.]” [3] are thus required to resolve whether employee’s Facebook post insulting his boss’s mother encouraging vote ought receive protection Sections 8(a)(1) 8(a)(3) NLRA. [4]
*5 We hold not shown existence of “extraordinary circumstance” requires us to waive ordinary rule against considering arguments not presented to required by U.S.C. § 160(e). We therefore do reach merits of challenge to Acting Counsel Solomon’s appointment. We also affirm NLRB’s determination violated Sections 8(a)(1) 8(a)(3) by discharging Hernan Perez since Perez’s conduct so “opprobrious” lose protection NLRA. Our decision rests heavily deference afforded factual findings, made following six day bench trial informed specific social cultural context in this case. note, however, conduct sits outer bounds protected, ‐ related comments for reasons laid out below.
Accordingly, GRANT application for enforcement DENY Sixty’s cross petition review. own choosing, engage other concerted activities purpose collective bargaining or mutual aid or protection . . . . In turn, Section 8(a) NLRA, § 158(a), reads:
It shall unfair labor practice employer ‐‐ (1) interfere with, restrain, or coerce exercise rights guaranteed section title . . . .
(3) discrimination regard hire or tenure employment or any term condition employment encourage or discourage membership any labor organization . . .
BACKGROUND
Pier Sixty operates a catering company in New York, N.Y. In early 2011, many its service employees began seeking union representation. Following what parties substantially agree was tense organizing campaign that included threats from management that employees could penalized discharged activities, Pier Sixty employees voted unionize October 27, election.
Two days election, Hernan Perez working as server at Pier venue. A supervisor, Robert McSweeney, gave Perez and two other servers various directions what NLRB’s opinion describes “harsh tone.” These directions included “Turn your head way [towards guests] stop chitchatting,” “Spread out, move, move.” McSweeney’s attitude delivering these instructions upset Perez, who viewed them latest instance management’s continuing disrespect employees. About forty ‐ *7 five minutes later, during authorized break work, Perez used his iPhone post following message on his Facebook page:
Bob such NASTY MOTHER FUCKER don’t know how talk people!!!!!! Fuck his mother his entire fucking family!!!! What LOSER!!!! Vote YES UNION!!!!!!!
“Bob” referred McSweeney. Perez knew his Facebook “friends,” including ten coworkers, would able see post; post also publicly accessible, although Perez may have known so at time. Perez took down post three days later, on October 2011. post had already come attention management which, following investigation, fired Perez November 2011.
Later day, Perez filed charge with alleging he had been terminated retaliation “protected concerted activities.” On December Evelyn Gonzalez, who had led organizing efforts at filed second charge, alleging various unfair labor practices violation Section 8(a)(1) *8 NLRA. On August NLRB Region Two issued amended complaint consolidating those two charges.
On April the presiding Administrative Law Judge (“ALJ”) issued decision finding, as relevant here, had violated Sections 8(a)(1) and 8(a)(3) of the by discharging Perez retaliation protected activity. filed exceptions, *9 and a three ‐ member panel of the NLRB affirmed the ALJ’s decision, with one member dissenting. The NLRB filed application for enforcement, and filed a cross petition review that are now before this Court.
JURISDICTION
While both parties agree that we have jurisdiction, we nonetheless consider the issue independently. As initial matter, the Board had jurisdiction over the original petition U.S.C. § 160(a)–(c), which empowers Board to prevent unfair labor practices. Exercising that power, Board issued a final order Cf. Constellation Brands v. F.3d (2d Cir. 2016) (discussing procedures certification and authorities various units). See, e.g. Taylor Rogich n.2 (2d Cir. 2015) (concerning our independent obligation ascertain indeed have jurisdiction). Sections 10(a) (c) NLRA, §§ 160(a)–(c), provide, in relevant part:
Board is empowered, hereinafter provided, prevent any person engaging in any unfair labor practice (listed in section title) affecting commerce. . . . Whenever it is charged any person has engaged or is engaging in any such unfair labor practice, Board, or any agent or agency designated Board such purposes, shall have power issue cause be served upon such person a complaint stating charges respect, containing notice hearing Board or member thereof, or before designated agent or agency, place therein fixed, less than five days after serving said complaint . . . If upon preponderance testimony taken [at hearing] Board shall be opinion any person named complaint engaged engaging any such unfair labor practice, then shall state findings fact shall issue cause served such person order requiring such person cease *10 in this matter March 2015. Since is located in New York and transacts business within this Circuit, have jurisdiction over both the petition for enforcement of order, under Section 10(e) of the NLRA, and Sixty’s cross petition for review of order, under Section 10(f) of the NLRA.
and desist such unfair labor practice, and take such affirmative action including reinstatement of with or without back pay, will effectuate the policies of this subchapter . . . . LLC, WL 1457688. Section 10(e) of the NLRA, U.S.C. § 160(e), provides, in relevant part:
Board shall have power petition any court of appeals of the United States . . . within any circuit or district . . . wherein the unfair labor practice in question occurred or wherein such person resides or transacts business, enforcement of such order appropriate temporary relief or restraining order . . . . Section 10(f) of NLRA, U.S.C. § 160(f), provides, in relevant part:
Any person aggrieved a final order of Board granting or denying in whole or in part relief sought may obtain review of such order in any United States court of appeals in circuit wherein unfair labor practice in question alleged have been engaged in or wherein such person resides or transacts business . . . filing such court written petition praying order of Board be modified or set aside. In addition, Section 9(d) of NLRA, § 159(d) states record findings made underlying proceeding are part record this Court:
Whenever order . . . is based whole or part upon facts certified following investigation pursuant subsection (c) this section there petition enforcement or review such order, such certification record such investigation shall be included transcript entire record required filed subsection (e) (f) section title . . .
DISCUSSION
A. The Validity of the Acting General Counsel’s Appointment As initial matter, address Pier Sixty’s argument the Court cannot enforce the NLRB decision because the complaint against Pier Sixty was authorized law. do not reach the merits this FVRA challenge because Pier Sixty forfeited the issue raising it proceedings Board.
In making argument, Sixty relies entirely on SW General, Inc. v. NLRB , recent decision Court Appeals District Columbia Circuit (“D.C. Circuit”), which held NLRB’s Acting General Counsel Solomon—under whose authority complaint against issued—served violation FVRA, §§ et seq The Supreme Court recently affirmed decision adopted D.C. Circuit’s interpretation FVRA. Once President Obama nominated Solomon (on January 5, 2011) serve as General Counsel, Supreme Court concluded, FVRA prohibited Solomon continuing his service Acting General Counsel. argues because complaint here *12 was issued under purported authority of Solomon as Acting General Counsel on August 24, 2012, it invalid.
But unlike petitioner SW General , never raised this argument before Board. Pursuant to 29 § 160(e), “[n]o objection has not been urged before Board . . shall be considered court, unless failure or neglect to urge such objection shall excused because extraordinary circumstances.” Our precedents make clear, moreover, even an apparently meritorious challenge to authority an NLRB agent itself does qualify as an “exceptional circumstance” allowing party to raise argument first time our Court. [20]
While recognize this issue, generally construed, divided various panels Courts Appeals, does even cite acknowledge any those cases—aside, course, new candidate, whom Senate confirmed October 2013. Throughout period Solomon served as Acting Counsel. See id. *7. Paulsen v. Remington Lodging & Hosp., LLC , F.3d 467–68 (2d Cir.
2014) (rejecting untimely FVRA challenge Solomon’s authority to authorize injunction Section 10(j) Act); NLRB v. Newton New Haven Co. , F.2d (2d Cir. 1974) (refusing grant relief on untimely challenge decision issued panel consisting one Board member two staff attorneys, contrary NLRA’s quorum requirements). For example, with respect appointment challenges quorum
requirement, compare Noel Canning v. NLRB F.3d (D.C. Cir. 2013) (holding such challenge qualifies “extraordinary circumstance”), aff’d grounds S. Ct. (2014), with RELCO Locomotives, Inc. (8th Cir. 2013) (no “extraordinary circumstance”). *13 asking us to “take judicial notice the [D.C. Circuit’s opinion in] SW General ” —let alone address any the arguments with which those panels have grappled. Our Court already addressed the matter, so we need not be long detained by these decisions; we simply note that to extent Pier Sixty’s “arguments” might be construed as requesting us to reconsider our precedents, we decline to do so. Accordingly, we conclude that Pier Sixty forfeited its FVRA challenge.
B. NLRB’s Decision That Violated NLRA
Discharging Perez
We now turn to second question presented—namely, whether NLRB’s petition enforcement should be granted. That question itself turns more particular one: Facebook post so “opprobrious” to lose protection that affords related speech?
In answering question, we will accept NLRB’s factual findings ʺ if they are supported substantial evidence light *14 record as whole.” [23] Substantial evidence means “such relevant evidence reasonable mind might accept adequate support conclusion.” [24] Furthermore, we will disturb Board’s adoption ALJ’s credibility determinations unless “the testimony is hopelessly incredible or findings flatly contradict either law nature or undisputed documentary testimony.” [25] While review NLRB’s legal conclusions de novo , [26] “[l]egal conclusions based upon expertise should receive, pursuant longstanding Supreme Court precedent, considerable deference.” [27] NLRA generally prohibits employers discharging employee concerted or related activity. Specifically, Section 7 guarantees right “to engage . . concerted activities purpose collective bargaining or mutual aid protection.” [28] Determining whether activity falls within meaning Section 7 is task “implicates [the Board’s] expertise labor relations” “the perform *15 in first instance.” [29]
This right engage in union ‐ related activity is protected Sections 8(a)(1) 8(a)(3) NLRA, which prohibit an employer discharging for participating in protected, union ‐ related activity under Section 7. [30] But even employee engaged ostensibly protected activity may act” such abusive manner he loses protection” NLRA. [31] The parties disagree about proper framework for identifying “abusive” behavior. “abusive” behavior at issue here use
obscenities workplace. Traditionally, starting point for evaluating whether employee’s “uttering . . obscenities” workplace qualifies protection been four factor test established NLRB Atlantic Steel. [32] That test considers: “(1) place discussion; (2) subject matter discussion; (3) nature employee’s outburst; (4) whether outburst was, in any way, provoked an employer’s unfair labor practice.” [33]
But Atlantic Steel test come pressure in recent years. In NLRB Starbucks , Court concluded that Atlantic Steel test gave insufficient weight employers’ interests preventing employees’ outbursts “in public place presence customers” suggested more balanced standards for evaluating “opprobrious” conduct context. remanded cause NLRB develop appropriate test determining NLRA’s “protection employee who, while discussing employment issues, utters obscenities presence customers.”
At about same time, Counsel’s Office began developing new guidance evaluating employee’s use social media went more employee friendly direction limited ability employers issue rules regarding use social media, even where were posting public criticisms their employers workplace. This new guidance built upon *17 regularly ‐ observed distinction between activity outside the workplace confrontations the immediate presence of coworkers or customers. [37] In light of the General Counsel’s new guidance, the Board has utilized the nine ‐ factor “totality of the circumstances” test recent social media cases. [38] C ONCERNING S OCIAL M EDIA C ASES , M EMORANDUM O M 12 ‐ 31 (Jan. 24, 2012); see also NLRB O FFICE O F G EN C OUNSEL , R EPORT OF THE A CTING G ENERAL C OUNSEL C ONCERNING S OCIAL M EDIA C ASES , M EMORANDUM O M 11 74, at 5–6, 12 (Aug. 18, 2011). note, however, advice memoranda the Counsel do constitute precedential authority are not binding on the Board, see Midwest Television, Inc. , 343 NLRB 748, 762 n.21 (2004), much less on the courts. See, e.g., Starbucks at 78 80 (distinguishing between outbursts public venues versus private spaces). See, e.g., Richmond Dist. Neighborhood Ctr. NLRB No. 74, WL 5465462, at
*2 n.6 (Oct. 28, 2014) (holding, the absence of exceptions applying totality ‐ circumstances test, egregiousness private Facebook conversation could be examined using such test); accord Fresenius USA Mfg. NLRB ‐ (2012), superseded grounds No. WL (June 2015). The “totality the circumstances” test evaluating employee’s use social media may consider following factors: (1) any evidence antiunion hostility; (2) whether conduct was provoked; (3) whether conduct was impulsive or deliberate; (4) location conduct; (5) subject matter conduct; (6) nature content; (7) whether employer considered similar content offensive; (8) whether employer maintained specific rule prohibiting content at issue; (9) whether discipline imposed typical similar violations proportionate offense. LLC, WL *3. aforementioned tests, though most relevant conduct issue here, are exclusive frameworks through which evaluated whether employee conduct entitled protection.
In the present case, after adopting the ALJ’s factual findings, the Board analyzed Perez’s Facebook post using the nine ‐ factor “totality of circumstances” test. While we are not convinced the amorphous “totality circumstances” test adequately balances employer’s interests, [39] Pier Sixty did not object ALJ’s use test in evaluating statements Board. For reason, we need not, do not, address validity test this opinion. [40] [ SA27]
Instead, argues Board’s decision—that “Perez ʹ comments were not so egregious exceed Act ʹ s protection” [41] —is supported “substantial evidence” record. It is entirely clear whether is challenging factual findings or legal conclusions. Regardless whether are reviewing factual findings under “substantial evidence” standard legal conclusions “considerable deference” standard, decision this case is justified. [42] Several factors inform our conclusion.
*19 First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, “subject matter” message included workplace concerns—management’s allegedly disrespectful treatment employees, and upcoming union election. Pier Sixty had demonstrated its hostility toward employees’ activities period immediately prior representation election and proximate Perez’s post. Pier Sixty had threatened rescind benefits and/or fire employees who voted unionization. It also had enforced “no talk” rule on groups employees, including Perez and Gonzalez, who were prevented McSweeney discussing Union. Perez’s Facebook post explicitly protested mistreatment management and exhorted employees “Vote YES UNION.” Thus, Board could reasonably determine outburst idiosyncratic reaction manager’s request but part tense debate over managerial mistreatment period representation election.
Second, Pier consistently tolerated profanity among workers. The ALJ found had previously disciplined employees widespread profanity workplace, including words “fuck” and “motherfucker,” among expletives racial slurs. [ SA 2] relied evidence that, context daily obscenities, only issued five written warnings to employees such offense six years prior to discharge. [SA 4 n.12] And there no evidence that has ever discharged employee solely use offensive language. [ SA 4] ALJ specifically credited employee testimony Chef DeMaiolo and McSweeney cursed at on a daily basis including screaming phrases such as “What fuck are you doing?,” “Motherfucker,” “Are you guys fucking stupid?” [45] recognize one could draw distinction between generalized scatology (or even cursing at someone), and, on hand, cursing someone’s mother family. [46] But one could reasonably *21 decide, ALJ did case, that Perez’s comments “were not a slur against McSweeney’s family but, rather, epithet directed McSweeney himself.” Under circumstances presented here, it is striking that Perez—who had been server at for thirteen years—was fired for profanities two days before Union election when no employee had ever been sanctioned (much less fired) profanity.
Third, “location” Perez’s comments was online forum key medium communication among coworkers and tool organization modern era. While Facebook post may visible whole world, including actual and potential customers, argues, outburst was immediate presence customers nor did it disrupt catering event. Furthermore, Perez asserts he mistakenly thought his Facebook page was private took post down three days later, upon learning it publicly accessible. thus conclude, et al., A Typology Verbal Impoliteness Behaviour English Spanish Cultures , R EVISTA E SPAÑOLA D E L INGÜÍSTICA A PLICADA (2012) (evaluating differences verbal impoliteness across Spanish speaking cultures). This contrasts groups where maternal insults carry different social cultural connotations. B AKEWELL M ADRE : P ERILOUS J OURNEYS WITH A S PANISH N OUN (“[A]ll over world groups people have their ways insult mothers use mothers insult others.”). LLC WL *4 (internal quotation marks omitted). Cf. Starbucks ( “ [T]he analysis ALJ
improperly disregarded entirely legitimate concern employer tolerate employee outbursts containing obscenities presence customers ”).
according appropriate deference to Board’s factual findings and interpretation of NLRA, that did err ruling that Perez’s Facebook post, although vulgar inappropriate, was so egregious as to exceed NLRA’s protection. Nor was his Facebook post equivalent to “public outburst” presence customers thus can reasonably be distinguished from cases “opprobrious conduct.”
In sum, has failed to meet its burden showing behavior so egregious as to lose protection NLRA “totality ‐ ‐ circumstances” test. However, we note case seems to us to sit outer bounds protected, related comments, any test evaluating “opprobrious conduct” must be sufficiently sensitive employers’ legitimate disciplinary interests, we have previously cautioned. have considered all Sixty’s objections enforcement have found them without merit.
CONCLUSION
To summarize, hold follows:
(1) forfeited challenge legality Acting Counsel Solomon’s appointment failing raise *23 it required by § 160(e). Since it not argued existence “extraordinary circumstance,” which would allow us waive ordinary rule against considering arguments not presented Board, we do reach merits its FVRA challenge. (2) NLRB’s petition enforcement—urging violated Sections 8(a)(1) 8(a)(3) NLRA discharging Hernan Perez since Perez’s conduct so “opprobrious” lose protection NLRA—is granted. Our conclusion rests heavily deference afforded NLRB’s interpretation factual findings, which, instant case, were informed six ‐ day bench trial. note, however, conduct sits outer bounds protected, related comments.
For foregoing reasons, GRANT application enforcement DENY Sixty’s cross petition review.
[1] U.S.C. §§ 3345 et seq
[2] Section 10(e) NLRA, U.S.C. § 160(e), provides, relevant part: “No objection been urged Board, member, agent, or agency, shall be considered court, unless failure or neglect urge such objection shall excused because extraordinary circumstances.”
[3] NLRB Starbucks Corp. (2d Cir. 2012) (quoting Atl. Steel Co ., (1979)).
[4] Section NLRA, § provides, relevant part: Employees shall have right self organization, form, join, assist labor organizations, bargain collectively through representatives their
[5] does contest it violated Section 8(a)(1) threatening employees, telling them bargaining would start scratch, disparately enforcing its no talk rule. Sixty, LLC, No. 59, WL *6 (Mar. 2015); Appendix (“A”) 159, 202. Since grant NLRB’s order enforcement entirety, may enforce its order with respect Hernan discharge (for reasons set forth below) with respect unfair labor practices against are challenged Court.
[6] LLC, WL *1.
[7] Id.
[8] Id. at *2.
[9] Id. *5.
[10] Id. *2.
[11] The NLRB has twenty six regional offices, and Region Two includes the boroughs of Manhattan and the Bronx New York City, and Orange, Putnam, Rockland and Westchester Counties. See NLBR, Who Are: Regional Offices https://www.nlrb.gov/region/02/area served.
[12] unusual structure of the bears mentioning. The investigation and issuance of complaints falls largely to the Board’s Regional Directors (“RDs”), who are appointed the General Counsel and approved by the Board. See U.S.C. § 153(b) (“The Board is . . . authorized to delegate to its regional directors powers . . . to investigate and provide hearings . . . .”). Once unfair labor practices complaint has been issued, ALJs (who are also under the supervision of the General Counsel) preside over trial and file decision. If no timely exceptions decision are filed, it automatically becomes decision and order the Board. See U.S.C. § 153(d) (“The General Counsel Board shall exercise general supervision over all attorneys employed Board (other than administrative law judges and legal assistants Board members) and over officers and regional offices.”); CFR § 102.48(a) (“In event no timely proper exceptions are filed herein provided, findings, conclusions, and recommendations administrative law judge contained his decision shall, pursuant section 10(c) Act, automatically become decision order . . .”). While substantial power been delegated RDs ALJs, Counsel—a Presidential appointee whose nomination subject advice consent Senate—retains “final authority” with respect “the investigation charges issuance complaints” NLRA. § 153(d).
[18] SW Gen., Inc. NLRB (D.C. Cir. 2015), aff’d , No. 1251, ‐‐‐ U.S. ‐‐‐ WL (Mar. 2017).
[19] SW Gen., Inc. WL at *14. The General Counsel vacancy arose June which point Solomon qualified “acting” service subsection (a)(3) FVRA because he senior employee NLRB. In January President Obama nominated Solomon serve NLRB’s Counsel permanent basis. Senate never took action on nomination, President ultimately withdrew Solomon’s name favor
[22] Br. 18. Of course, D.C. Circuit SW took care voice its support our conclusion petitioners like who fail raise an FVRA argument Board, will not heard first time courts. 82–83 (“[T]his case Son Noel Canning do expect it retroactively undermine host decisions. We address FVRA objection case because petitioner raised issue exceptions ALJ decision defense ongoing enforcement proceeding. doubt employer failed timely raise FVRA objection—regardless whether enforcement proceedings are ongoing concluded—will enjoy same success.” (footnote omitted)).
[23] Starbucks Corp. , 679 F.3d 77 (internal quotation marks omitted); see Universal Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951).
[24] Kinney Drugs, Inc. v. NLRB , 74 F.3d 1419, 1427 (2d Cir. 1996) (internal quotation marks omitted).
[25] NLRB v. Thalbo Corp. 171 F.3d 112 (2d Cir. 1999) (internal quotation marks omitted).
[26] Local Union v. NLRB F.3d (2d Cir. 2013).
[27] Starbucks (internal quotation marks omitted); see Town & Country Elec., Inc., U.S. (1995).
[28] § 157; see note ante.
[29] NLRB v. City Disposal Sys., Inc. , U.S. (1984) (internal quotation marks omitted).
[30] note ante; see also, e.g. NLRB v. Oakes Mach. Corp. , F.2d (2d Cir. 1990) (unlawful discharge take personnel action against employee protected concerted activity); Office & Prof’l Emps. In’l Union, AFL CIO, CLC NLRB & n.4 (2d Cir. 1992) (unlawful discharge employee union activity such actions derivatively violate Section 8(a)(1) because antiunion motivated discipline necessarily discourages activities).
[31] City Disposal Sys., Inc. U.S. 837.
[32] 816.
[33] Id .
[34] Starbucks , 79.
[35] Id. 80. On remand, however, “assume[d] [the] conduct lost protection Act” but found violation Act grounds. See Starbucks Corp. , NLRB (2014).
[36] NLRB O FFICE O F G EN . C OUNSEL R EPORT OF THE A CTING G ENERAL C OUNSEL C ONCERNING S OCIAL M EDIA C ASES M EMORANDUM O M (May 2012); O FFICE O F G EN C OUNSEL R EPORT OF THE A CTING G ENERAL C OUNSEL
[39] Cf. Id. at *5 (Johnson, Member, dissenting part) (“My colleagues convert [‘totality circumstances’] analysis into what is, effect, Atlantic Steel test steroids even more susceptible manipulation based on ‘agency whim’ than ‐ factor Atlantic Steel test.” (footnote omitted))
[40] See, e.g., GAIU Local B F.2d (2d Cir. 1982) (on failure object ALJ’s use particular test).
[41] LLC, WL *3.
[42] Local Union (stating well established standards review).
[43] Sixty, LLC, WL *6; A (finding that, meetings prior election, Giordano told employees they could lose their jobs all would lose current benefits, including their 401(k) plan, gym privileges, tuition reimbursement, medical dental insurance).
[44] LLC, WL *2.
[45] Id. *6. See Thalbo Corp. , at 112 (explaining courts will disturb adoption judge’s credibility determinations unless “the testimony hopelessly incredible or findings flatly contradict either law nature or undisputed documentary testimony” (internal quotation marks omitted)).
[46] Cf. LLC, WL *5 (Johnson, Member, dissenting part). Much been written “fighting words” are so insulting both content delivery they are likely provoke listener respond violently. See Cohen v. California , U.S. (1971) (defining ‘‘fighting words’’ as ‘‘those personally abusive epithets which, when addressed ordinary citizen, are, as matter common knowledge, inherently likely provoke violent reaction’’); Chaplinsky New Hampshire U.S. (1942) (defining ‘‘fighting words’’ ‘‘those which their very utterance inflict injury tend incite immediate breach peace’’). Different groups respond same words differently. See generally José Mateo & Francisco Yus, Towards Cross Cultural Pragmatic Taxonomy Insults J. OF L ANG A GGRESSION & C ONFLICT (2013) (examining cursing verbal abuse varying cultural contexts). Among some groups, certain maternal insults could perceived “fighting words.” L IZA B AKEWELL M ADRE : P ERILOUS J OURNEYS WITH A S PANISH N OUN (2011) ; see also Silvia Kaul de Marlangeon,
[49] See, e.g., Washington Aluminum Co. U.S. (1962) (holding certain employee conduct crosses line protected activity “indefensible” conduct loses protections).
[50] Starbucks 79.