15-1841-ag (L)
NLRB v. Pier Sixty, LLC
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2015
Nos. 15‐1841‐ag (L), 15‐1962‐ag (XAP)
NATIONAL LABOR RELATIONS BOARD,
Petitioner‐Cross‐Respondent,
v.
PIER SIXTY, LLC,
Respondent‐Cross‐Petitioner.
On Petition for Review and Cross‐Application for Enforcement of an
Order of the National Labor Relations Board
ARGUED: APRIL 5, 2016
DECIDED: APRIL 21, 2017
Before: KEARSE, CABRANES, and CHIN, Circuit Judges.
This case presents two questions. The first is whether
respondent has forfeited its challenge to the legality of the
appointment of the Acting General Counsel of the National Labor
Relations Board (the “NLRB” or the “Board”). The second question is
the extent to which the National Labor Relations Act (the “NLRA”)
protects an employee’s comments on social media and the point at
which an employee’s conduct is so “opprobrious” as to lose the
NLRA’s protection.
We conclude that the respondent forfeited its challenge to the
Acting General Counsel’s appointment by failing to raise that
argument before the Board as required by 29 U.S.C. § 160(e). We also
affirm the NLRB’s determination that the respondent violated
Sections 8(a)(1) and 8(a)(3) of the NLRA by discharging Hernan Perez
since Perez’s conduct was not so “opprobrious” as to lose the
protection of the NLRA. Our decision rests heavily on the deference
afforded to the NLRB’s factual determinations, found after a six‐day
bench trial informed by the specific social and cultural context in this
case. We nonetheless note that Perez’s conduct sits at the outer‐
bounds of protected, union‐related comments for the reasons set
forth below.
Accordingly, we GRANT the Board’s application for
enforcement and DENY Pier Sixty’s cross‐petition for review.
THOMAS V. WALSH, Jackson Lewis P.C.,
White Plains, NY, for Respondent‐Cross‐
Petitioner.
2
BENJAMIN M. SHULTZ and Scott R. McIntosh,
Attorneys, Appellate Staff, for Benjamin C.
Mizer, Principal Deputy Assistant Attorney
General, U.S. Department of Justice, Civil
Division, Washington, DC;
AMY H. GINN, 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, for
Petitioner‐Cross‐Respondent.
JOSÉ A. CABRANES, Circuit Judge:
This petition for enforcement of an order of the National Labor
Relations Board (the “Board” or the “NLRB”) and an employerʹs
cross‐petition for review present two questions. The first is whether
the employer, Respondent‐Cross‐Petitioner Pier Sixty, LLC (“Pier
Sixty”), has forfeited its challenge to the legality of the appointment
of Acting General Counsel of the NLRB, Lafe Solomon (“Solomon”).
Pier Sixty argues that Solomon, who authorized the complaint in this
case, served in violation of the Federal Vacancies Reform Act of 1998
3
(the “FVRA”)1 and that the complaint was therefore issued illegally.
Although Pier Sixty failed to raise this argument before the Board, as
required by Section 10(e) of the National Labor Relations Act (the
“NLRA”),2 Pier Sixty argues that we may nonetheless consider it on
appeal, under the “extraordinary circumstances” exception in that
section.
The second question presented is what constitutes
“opprobrious conduct” in the context of an employee’s comments on
social media. To be more precise: the NLRA generally prohibits
employers from terminating an employee based on that employee’s
union‐related activity. But even an employee engaged in protected
activity “can, by opprobrious conduct, lose the protection of the
[NLRA.]”3 We are thus required to resolve whether an employee’s
Facebook post insulting his boss’s mother and encouraging other
employees to vote for the union ought to receive protection under
Sections 8(a)(1) and 8(a)(3) of NLRA. 4
1 5 U.S.C. §§ 3345 et seq.
2 Section 10(e) of the NLRA, 29 U.S.C. § 160(e), provides, in relevant part: “No
objection that has not been urged before the Board, its member, agent, or agency,
shall be considered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary circumstances.”
NLRB v. Starbucks Corp., 679 F.3d 70, 79 (2d Cir. 2012) (quoting Atl. Steel Co., 245
3
NLRB 814, 816 (1979)).
4 Section 7 of the NLRA, 29 U.S.C. § 157, provides, in relevant part:
Employees shall have the right to self‐organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
4
We hold that Pier Sixty has not shown the existence of an
“extraordinary circumstance” that requires us to waive the ordinary
rule against considering arguments not presented to the Board as
required by 29 U.S.C. § 160(e). We therefore do not reach the merits
of the challenge to Acting General Counsel Solomon’s appointment.
We also affirm the NLRB’s determination that Pier Sixty violated
Sections 8(a)(1) and 8(a)(3) by discharging Hernan Perez since Perez’s
conduct was not so “opprobrious” as to lose the protection of the
NLRA. Our decision rests heavily on the deference afforded to NLRB
factual findings, made following a six‐day bench trial informed by
the specific social and cultural context in this case. We note, however,
that Perez’s conduct sits at the outer‐bounds of protected, union‐
related comments for the reasons laid out below.
Accordingly, we GRANT the Board’s application for
enforcement and DENY Pier Sixty’s cross‐petition for review.
own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection . . . .
In turn, Section 8(a) of the NLRA, 29 U.S.C. § 158(a), reads:
It shall be an unfair labor practice for an employer‐‐
(1) to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 157 of this title . . . .
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership
in any labor organization . . . .
5
BACKGROUND
Pier Sixty operates a catering company in New York, N.Y. In
early 2011, many of its service employees began seeking union
representation. Following what the parties substantially agree was a
tense organizing campaign that included threats from management
that employees could be penalized or discharged for union activities,
Pier Sixty employees voted to unionize in an October 27, 2011
election.5
Two days before that election, Hernan Perez was working as a
server at a Pier Sixty venue. A supervisor, Robert McSweeney, gave
Perez and two other servers various directions in what the NLRB’s
opinion describes as a “harsh tone.”6 These directions included “Turn
your head that way [towards the guests] and stop chitchatting,” and
“Spread out, move, move.”7 McSweeney’s attitude in delivering these
instructions upset Perez, who viewed them as the latest instance of
the management’s continuing disrespect for employees. About forty‐
5 Pier Sixty does not contest that it violated Section 8(a)(1) of the NLRA by
threatening employees, telling them bargaining would start from scratch, and
disparately enforcing its no‐talk rule. See Pier Sixty, LLC, 362 NLRB No. 59, 2015
WL 1457688, at *6 (Mar. 31, 2015); Appendix (“A”) 10‐11, 159, 200‐202. Since we
grant the NLRB’s order for enforcement in its entirety, the Board may enforce its
order with respect to Hernan Perez’s discharge (for the reasons set forth below)
and with respect to the unfair labor practices against other employees that are not
challenged in this Court.
6 Pier Sixty, LLC, 2015 WL 1457688, at *1.
7 Id.
6
five minutes later, during an authorized break from work, Perez used
his iPhone to post the following message on his Facebook page:
Bob is such a NASTY MOTHER FUCKER don’t know
how to talk to people!!!!!! Fuck his mother and his entire
fucking family!!!! What a LOSER!!!! Vote YES for the
UNION!!!!!!!8
“Bob” referred to McSweeney. Perez knew that his Facebook
“friends,” including ten coworkers, would be able to see the post; the
post was also publicly accessible, although Perez may not have
known so at the time.9 Perez took down the post three days later, on
October 28, 2011. The post had already come to the attention of the
management of Pier Sixty which, following an investigation, fired
Perez on November 9, 2011.10
Later that day, Perez filed a charge with the NLRB alleging
that he had been terminated in retaliation for “protected concerted
activities.” On December 15, 2011, 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
8 Id. at *2.
9 Id. at *5.
10 Id. at *2.
7
NLRA. On August 24, 2012, NLRB Region Two issued an amended
complaint consolidating those two charges.11
On April 18, 2013, the presiding Administrative Law Judge
(“ALJ”) issued a decision finding, as relevant here, that Pier Sixty had
violated Sections 8(a)(1) and 8(a)(3) of the NLRA by discharging
Perez in retaliation for protected activity.12 Pier Sixty filed exceptions,
The NLRB has twenty‐six regional offices, and Region Two includes the
11
boroughs of Manhattan and the Bronx in New York City, and Orange, Putnam,
Rockland and Westchester Counties. See NLBR, Who We Are: Regional Offices,
https://www.nlrb.gov/region/02/area‐served.
12 The unusual structure of the NLRB bears mentioning. The investigation and
issuance of complaints falls largely to the Board’s Regional Directors (“RDs”),
who are appointed by the General Counsel and approved by the Board. See 29
U.S.C. § 153(b) (“The Board is . . . authorized to delegate to its regional directors
its powers . . . to investigate and provide for hearings . . . .”).
Once an unfair labor practices complaint has been issued, ALJs (who are also
under the supervision of the General Counsel) preside over a trial and file a
decision. If no timely exceptions to that decision are filed, it automatically
becomes the decision and order of the Board. See 29 U.S.C. § 153(d) (“The General
Counsel of the Board shall exercise general supervision over all attorneys
employed by the Board (other than administrative law judges and legal assistants
to Board members) and over the officers and employees in the regional offices.”);
29 CFR § 102.48(a) (“In the event no timely or proper exceptions are filed as herein
provided, the findings, conclusions, and recommendations of the administrative
law judge as contained in his decision shall, pursuant to section 10(c) of the Act,
automatically become the decision and order of the Board . . . .”).
While substantial power has been delegated to the RDs and ALJs, the Board’s
General Counsel—a Presidential appointee whose nomination is subject to the
advice and consent of the Senate—retains the “final authority” with respect to
“the investigation of charges and issuance of complaints” under the NLRA. See 29
U.S.C. § 153(d).
8
and a three‐member panel of the NLRB affirmed the ALJ’s decision,
with one member dissenting. The NLRB filed an application for
enforcement, and Pier Sixty filed a cross‐petition for review that are
now before this Court.
JURISDICTION
While both parties agree that we have jurisdiction, we
nonetheless consider the issue independently.13 As an initial matter,
the Board had jurisdiction over the original petition under
29 U.S.C. § 160(a)–(c), which empowers the Board to prevent unfair
labor practices.14 Exercising that power, the Board issued a final order
Cf. Constellation Brands v. NLRB, 842 F.3d 784, 787‐89 (2d Cir. 2016) (discussing the
Board’s procedures for union certification and the authorities of various units).
13 See, e.g., Taylor v. Rogich, 781 F.3d 647, 648 n.2 (2d Cir. 2015) (concerning our
independent obligation to ascertain that we indeed have jurisdiction).
14 Sections 10(a)‐(c) of the NLRA, 29 U.S.C. §§ 160(a)–(c), provide, in relevant part:
The Board is empowered, as hereinafter provided, to prevent any person
from engaging in any unfair labor practice (listed in section 158 of this
title) affecting commerce. . . . Whenever it is charged that any person has
engaged in or is engaging in any such unfair labor practice, the Board, or
any agent or agency designated by the Board for such purposes, shall have
power to issue and cause to be served upon such person a complaint
stating the charges in that respect, and containing a notice of hearing
before the Board or a member thereof, or before a designated agent or
agency, at a place therein fixed, not less than five days after the serving of
said complaint . . . . If upon the preponderance of the testimony taken [at
the hearing] the Board shall be of the opinion that any person named in
the complaint has engaged in or is engaging in any such unfair labor
practice, then the Board shall state its findings of fact and shall issue and
cause to be served on such person an order requiring such person to cease
9
in this matter on March 31, 2015.15 Since Pier Sixty is located in New
York and transacts business within this Circuit, we have jurisdiction
over both the Board’s petition for enforcement of that order, under
Section 10(e) of the NLRA,16 and Pier Sixty’s cross‐petition for review
of that order, under Section 10(f) of the NLRA.17
and desist from such unfair labor practice, and to take such affirmative
action including reinstatement of employees with or without back pay, as
will effectuate the policies of this subchapter . . . .
15 See Pier Sixty, LLC, 2015 WL 1457688.
16 Section 10(e) of the NLRA, 29 U.S.C. § 160(e), provides, in relevant part:
The Board shall have power to 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,
for the enforcement of such order and for appropriate temporary relief or
restraining order . . . .
17 Section 10(f) of the NLRA, 29 U.S.C. § 160(f), provides, in relevant part:
Any person aggrieved by a final order of the Board granting or denying in
whole or in part the relief sought may obtain a review of such order in any
United States court of appeals in the circuit wherein the unfair labor
practice in question was alleged to have been engaged in or wherein such
person resides or transacts business . . . by filing in such a court a written
petition praying that the order of the Board be modified or set aside.
In addition, Section 9(d) of the NLRA, 29 U.S.C. § 159(d) states that the record and
findings made in the underlying proceeding are part of the record before this
Court:
Whenever an order of the Board . . . is based in whole or in part upon facts
certified following an investigation pursuant to subsection (c) of this
section and there is a petition for the enforcement or review of such order,
such certification and the record of such investigation shall be included in
the transcript of the entire record required to be filed under subsection (e)
or (f) of section 160 of this title . . . .
10
DISCUSSION
A. The Validity of the Acting General Counsel’s Appointment
As an initial matter, we address Pier Sixty’s argument that the
Court cannot enforce the NLRB decision because the complaint
against Pier Sixty was not authorized by law. We do not reach the
merits of this FVRA challenge because Pier Sixty has forfeited the
issue by not raising it in the proceedings before the Board.
In making this argument, Pier Sixty relies entirely on SW
General, Inc. v. NLRB, a recent decision of the Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”), which held that the
NLRB’s Acting General Counsel Solomon—under whose authority
the complaint against Pier Sixty issued—served in violation of the
FVRA, 5 U.S.C. §§ 3345 et seq.18 The Supreme Court recently affirmed
that decision and adopted the D.C. Circuit’s interpretation of the
FVRA. Once President Obama nominated Solomon (on January 5,
2011) to serve as General Counsel, the Supreme Court concluded, the
FVRA prohibited Solomon from continuing his service as Acting
General Counsel.19 Pier Sixty argues that because the complaint here
18 See SW Gen., Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), aff’d, No. 15‐1251, ‐‐‐ U.S.
‐‐‐, 2017 WL 1050977 (Mar. 21, 2017).
19 SW Gen., Inc., 2017 WL 1050977, at *14. The NLRB General Counsel vacancy
arose in June 2010, at which point Solomon qualified for “acting” service under
subsection (a)(3) of the FVRA because he was a senior employee at the NLRB. In
January 2011, President Obama nominated Solomon to serve as the NLRB’s
General Counsel on a permanent basis. The Senate never took action on the
nomination, and the President ultimately withdrew Solomon’s name in favor of a
11
was issued under the purported authority of Solomon as Acting
General Counsel on August 24, 2012, it was invalid.
But unlike the petitioner in SW General, Pier Sixty never raised
this argument before the Board. Pursuant to 29 U.S.C. § 160(e), “[n]o
objection that has not been urged before the Board . . . shall be
considered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary circumstances.”
Our precedents make clear, moreover, that even an apparently
meritorious challenge to the authority of an NLRB agent in itself does
not qualify as an “exceptional circumstance” allowing the party to
raise the argument for the first time before our Court.20
While we recognize that this issue, generally construed, has
divided various panels of the Courts of Appeals,21 Pier Sixty does not
even cite or acknowledge any of those cases—aside, of course, from
new candidate, whom the Senate confirmed in October 2013. Throughout this
period Solomon served as the Acting General Counsel. See id. at *7.
See Paulsen v. Remington Lodging & Hosp., LLC, 773 F.3d 462, 467–68 (2d Cir.
20
2014) (rejecting as untimely a FVRA challenge to Solomon’s authority to authorize
an injunction under Section 10(j) of the Act); NLRB v. Newton‐New Haven Co., 506
F.2d 1035, 1038 (2d Cir. 1974) (refusing to grant relief on an untimely challenge to
a Board decision issued by a panel consisting of one Board member and two staff
attorneys, contrary to the NLRA’s quorum requirements).
For example, with respect to appointment challenges to the Board’s quorum
21
requirement, compare Noel Canning v. NLRB, 705 F.3d 490, 498 (D.C. Cir. 2013)
(holding that such a challenge qualifies as an “extraordinary circumstance”), aff’d
on other grounds, 134 S. Ct. 2550 (2014), with NLRB v. RELCO Locomotives, Inc., 734
F.3d 764, 798 (8th Cir. 2013) (no “extraordinary circumstance”).
12
asking us to “take judicial notice of the [D.C. Circuit’s opinion in] SW
General”22—let alone address any of the arguments with which those
panels have grappled. Our Court has already addressed the matter,
so we need not be long detained by these other decisions; we simply
note that to the 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. The NLRB’s Decision That Pier Sixty Violated the NLRA by
Discharging Perez
We now turn to the second question presented—namely,
whether the NLRB’s petition for enforcement should be granted. That
question itself turns on a more particular one: was Perez’s Facebook
post so “opprobrious” as to lose the protection that the NLRA affords
union‐related speech?
In answering that question, we will accept the NLRB’s factual
findings ʺif they are supported by substantial evidence in light of the
22 Pier Sixty Br. 18. Of course, the D.C. Circuit in SW General took care to voice its
support for our conclusion that petitioners like Pier Sixty, who fail to raise an
FVRA argument before the Board, will not be heard for the first time in the courts.
See 796 F.3d at 82–83 (“[T]his case is not Son of Noel Canning and we do not expect
it to retroactively undermine a host of NLRB decisions. We address the FVRA
objection in this case because the petitioner raised the issue in its exceptions to the
ALJ decision as a defense to an ongoing enforcement proceeding. We doubt that
an employer that failed to timely raise an FVRA objection—regardless whether
enforcement proceedings are ongoing or concluded—will enjoy the same
success.” (footnote omitted)).
13
record as a whole.”23 Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.”24 Furthermore, we will not disturb the Board’s adoption
of an ALJ’s credibility determinations unless “the testimony is
hopelessly incredible or the findings flatly contradict either the law of
nature or undisputed documentary testimony.”25 While we review
the NLRB’s legal conclusions de novo,26 “[l]egal conclusions based
upon the Board’s expertise should receive, pursuant to longstanding
Supreme Court precedent, considerable deference.”27
The NLRA generally prohibits employers from discharging an
employee for concerted or union‐related activity. Specifically,
Section 7 of the NLRA guarantees employees the right “to engage in
. . . concerted activities for the purpose of collective bargaining or
other mutual aid or protection.”28 Determining whether an activity
falls within the meaning of Section 7 is a task that “implicates [the
Board’s] expertise in labor relations” and is for “the Board to perform
Starbucks Corp., 679 F.3d at 77 (internal quotation marks omitted); see Universal
23
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
Kinney Drugs, Inc. v. NLRB, 74 F.3d 1419, 1427 (2d Cir. 1996) (internal quotation
24
marks omitted).
NLRB v. Thalbo Corp., 171 F.3d 102, 112 (2d Cir. 1999) (internal quotation marks
25
omitted).
26 See Local Union 36 v. NLRB, 706 F.3d 73, 82 (2d Cir. 2013).
Starbucks, 679 F.3d at 77 (internal quotation marks omitted); see NLRB v. Town &
27
Country Elec., Inc., 516 U.S. 85, 89‐90 (1995).
28 29 U.S.C. § 157; see note 4, ante.
14
in the first instance.”29
This right to engage in union‐related activity is protected by
Sections 8(a)(1) and 8(a)(3) of the NLRA, which prohibit an employer
from discharging employees for participating in protected, union‐
related activity under Section 7.30 But even an employee engaged in
ostensibly protected activity may act” in such an abusive manner that
he loses the protection” of the NLRA.31 The parties disagree about the
proper framework for identifying “abusive” behavior.
The “abusive” behavior at issue here is Perez’s use of
obscenities in the workplace. Traditionally, the starting point for
evaluating whether an employee’s “uttering of . . . obscenities” in the
workplace qualifies for protection under the NLRA has been the
four‐factor test established by the NLRB in Atlantic Steel.32 That test
considers: “(1) the place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and (4) whether
NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 829 (1984) (internal quotation
29
marks omitted).
See note 4, ante; see also, e.g., NLRB v. Oakes Mach. Corp., 897 F.2d 84, 88 (2d Cir.
30
1990) (unlawful to discharge or take other personnel action against employee for
protected concerted activity); Office & Prof’l Emps. In’l Union, AFL‐CIO, CLC v.
NLRB, 981 F.2d 76, 81 & n.4 (2d Cir. 1992) (unlawful to discharge employee for
union activity and such actions derivatively violate Section 8(a)(1) because
antiunion‐motivated discipline necessarily discourages union activities).
31 City Disposal Sys., Inc., 465 U.S. at 837.
32 245 NLRB at 816.
15
the outburst was, in any way, provoked by an employer’s unfair
labor practice.”33
But the Atlantic Steel test has come under pressure in recent
years. In NLRB v. Starbucks, this Court concluded that the Atlantic
Steel test gave insufficient weight to employers’ interests in
preventing employees’ outbursts “in a public place in the presence of
customers” and we suggested more balanced standards for
evaluating “opprobrious” conduct in that context.34 We remanded
the cause to the NLRB to develop an appropriate test for determining
the NLRA’s “protection for an employee who, while discussing
employment issues, utters obscenities in the presence of
customers.”35
At about the same time, the General Counsel’s Office began
developing new guidance for evaluating an employee’s use of social
media that went in a more employee‐friendly direction and that
limited the ability of employers to issue rules regarding use of social
media, even where employees were posting public criticisms of their
employers and workplace.36 This new guidance built upon a
33 Id.
34 Starbucks, 679 F.3d at 79.
Id. at 80. On remand, however, the Board “assume[d] that [the] conduct lost the
35
protection of the Act” but found a violation of the Act on other grounds. See
Starbucks Corp., 360 NLRB 1168, 1169 (2014).
See NLRB OFFICE OF GEN. COUNSEL, REPORT OF THE ACTING GENERAL COUNSEL
36
CONCERNING SOCIAL MEDIA CASES, MEMORANDUM OM 12‐59 (May 30, 2012);
NLRB OFFICE OF GEN. COUNSEL, REPORT OF THE ACTING GENERAL COUNSEL
16
regularly‐observed distinction between activity outside the
workplace and confrontations in 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 in recent social media cases.38
CONCERNING SOCIAL MEDIA CASES, MEMORANDUM OM 12‐31 (Jan. 24, 2012); see
also NLRB OFFICE OF GEN. COUNSEL, REPORT OF THE ACTING GENERAL COUNSEL
CONCERNING SOCIAL MEDIA CASES, MEMORANDUM OM 11‐74, at 5–6, 12 (Aug. 18,
2011). We note, however, that advice memoranda from the General Counsel do
not constitute precedential authority and 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, 679 F.3d at 78‐80 (distinguishing between outbursts in public
37
venues versus private spaces).
See, e.g., Richmond Dist. Neighborhood Ctr., 361 NLRB No. 74, 2014 WL 5465462, at
38
*2 n.6 (Oct. 28, 2014) (holding, in the absence of exceptions to applying a totality‐
of‐circumstances test, that egregiousness of a private Facebook conversation could
be examined using such a test); accord Fresenius USA Mfg., 358 NLRB 1261, 1267‐
68 (2012), superseded on other grounds by 362 NLRB No. 130, 2015 WL 3932160 (June
24, 2015).
The “totality of the circumstances” test for evaluating an employee’s use of social
media may consider the following factors: (1) any evidence of antiunion 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. Pier Sixty, LLC, 2015 WL 1457688, at *3.
The aforementioned tests, though most relevant to the conduct at issue here, are
not the exclusive frameworks through which the Board has evaluated whether
employee conduct is entitled to NLRA protection.
17
In the present case, after adopting the ALJ’s factual findings,
the Board analyzed Perez’s Facebook post using the nine‐factor
“totality of the circumstances” test. While we are not convinced the
amorphous “totality of the circumstances” test adequately balances
an employer’s interests,39 Pier Sixty did not object to the ALJ’s use of
the test in evaluating Perez’s statements before the Board. For that
reason, we need not, and do not, address the validity of that test in
this opinion.40 [SA27]
Instead, Pier Sixty argues that the Board’s decision—that
“Perezʹ comments were not so egregious as to exceed the Actʹs
protection”41—is not supported by “substantial evidence” in the
record. It is not entirely clear whether Pier Sixty is challenging the
factual findings of the Board or its legal conclusions. Regardless of
whether we are reviewing the factual findings under a “substantial
evidence” standard or the legal conclusions under a “considerable
deference” standard, the Board’s decision in this case is justified.42
Several factors inform our conclusion.
39 Cf. Id. at *5 (Johnson, Member, dissenting in part) (“My colleagues convert this
[‘totality of the circumstances’] analysis into what is, in effect, an Atlantic Steel test
on steroids that is even more susceptible to manipulation based on ‘agency whim’
than the 4‐factor Atlantic Steel test.” (footnote omitted))
See, e.g., NLRB v. GAIU Local 13‐B, 682 F.2d 304, 311‐12 (2d Cir. 1982) (on failure
40
to object to an ALJ’s use of a particular test).
41 Pier Sixty, LLC, 2015 WL 1457688, at *3.
See Local Union 36, 706 F.3d at 82 (stating the well‐established standards of
42
review).
18
First, even though Perez’s message was dominated by vulgar
attacks on McSweeney and his family, the “subject matter” of the
message included workplace concerns—management’s allegedly
disrespectful treatment of employees, and the upcoming union
election. Pier Sixty had demonstrated its hostility toward employees’
union activities in the period immediately prior to the representation
election and proximate to Perez’s post. Pier Sixty had threatened to
rescind benefits and/or fire employees who voted for unionization.43
It also had enforced a “no talk” rule on groups of employees,
including Perez and Gonzalez, who were prevented by McSweeney
from discussing the Union. Perez’s Facebook post explicitly protested
mistreatment by management and exhorted employees to “Vote YES
for the UNION.”44 Thus, the Board could reasonably determine that
Perez’s outburst was not an idiosyncratic reaction to a manager’s
request but part of a tense debate over managerial mistreatment in
the period before the representation election.
Second, Pier Sixty consistently tolerated profanity among its
workers. The ALJ found that Pier Sixty had not previously
disciplined employees for widespread profanity in the workplace,
including the words “fuck” and “motherfucker,” among other
expletives and racial slurs. [SA 2] The Board relied on evidence that,
43 See Pier Sixty, LLC, 2015 WL 1457688, at *6; A 10‐11, 159, 200‐02 (finding that, in
meetings prior to the election, Giordano told employees that they could lose their
jobs and all employees would lose current benefits, including their 401(k) plan,
gym privileges, tuition reimbursement, and medical and dental insurance).
44 Pier Sixty, LLC, 2015 WL 1457688, at *2.
19
in the context of daily obscenities, Pier Sixty only issued five written
warnings to employees for such an offense in the six years prior to
Perez’s discharge. [SA 4 n.12] And there was no evidence that Pier
Sixty has ever discharged an employee solely for the use of offensive
language. [SA 4] The ALJ specifically credited employee testimony
that Chef DeMaiolo and McSweeney cursed at employees on a daily
basis including screaming phrases such as “What the fuck are you
doing?,” “Motherfucker,” and “Are you guys fucking stupid?”45 We
recognize that one could draw a distinction between generalized
scatology (or even cursing at someone), and, on the other hand,
cursing someone’s mother and family.46 But one could reasonably
Id. at *6. See Thalbo Corp., 171 F.3d at 112 (explaining courts will not disturb the
45
Board’s adoption of a judge’s credibility determinations unless “the testimony is
hopelessly incredible or the findings flatly contradict either the law of nature or
undisputed documentary testimony” (internal quotation marks omitted)).
Cf. Pier Sixty, LLC, 2015 WL 1457688, at *5 (Johnson, Member, dissenting in
46
part).
Much has been written on “fighting words” that are so insulting in both content
and delivery that they are likely to provoke the listener to respond violently. See
Cohen v. California, 403 U.S. 15, 20 (1971) (defining ‘‘fighting words’’ as ‘‘those
personally abusive epithets which, when addressed to the ordinary citizen, are, as
a matter of common knowledge, inherently likely to provoke violent reaction’’);
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (defining ‘‘fighting words’’
as ‘‘those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace’’).
Different groups respond to the same words differently. See generally José Mateo
& Francisco Yus, Towards a Cross‐Cultural Pragmatic Taxonomy of Insults, 1 J. OF
LANG. AGGRESSION & CONFLICT 87‐114 (2013) (examining cursing and verbal
abuse in varying cultural contexts). Among some groups, certain maternal insults
could be perceived as “fighting words.” See LIZA BAKEWELL, MADRE: PERILOUS
JOURNEYS WITH A SPANISH NOUN 64, 74 (2011) ; see also Silvia Kaul de Marlangeon,
20
decide, as the ALJ did in this case, that Perez’s comments “were not a
slur against McSweeney’s family but, rather, an epithet directed to
McSweeney himself.”47 Under the circumstances presented here, it is
striking that Perez—who had been a server at Pier Sixty for thirteen
years—was fired for profanities two days before the Union election
when no employee had ever before been sanctioned (much less fired)
for profanity.
Third, the “location” of Perez’s comments was an online forum
that is a key medium of communication among coworkers and a tool
for organization in the modern era. While a Facebook post may be
visible to the whole world, including actual and potential customers,
as Pier Sixty argues, Perez’s outburst was not in the immediate
presence of customers nor did it disrupt the catering event.48
Furthermore, Perez asserts that he mistakenly thought that his
Facebook page was private and took the post down three days later,
upon learning that it was publicly accessible. We thus conclude,
et al., A Typology of Verbal Impoliteness Behaviour for the English and Spanish Cultures,
25 REVISTA ESPAÑOLA DE LINGÜÍSTICA APLICADA 69‐92 (2012) (evaluating
differences in verbal impoliteness across Spanish‐speaking cultures). This
contrasts to other groups where maternal insults carry different social and
cultural connotations. See BAKEWELL, MADRE: PERILOUS JOURNEYS WITH A SPANISH
NOUN 44 (“[A]ll over the world groups of people have their ways to insult
mothers or use mothers to insult others.”).
47 Pier Sixty, LLC, 2015 WL 1457688 at *4 (internal quotation marks omitted).
Cf. Starbucks, 679 F.3d at 79 (“[T]he analysis of the ALJ and the Board
48
improperly disregarded the entirely legitimate concern of an employer not to
tolerate employee outbursts containing obscenities in the presence of
customers.”).
21
according appropriate deference to the Board’s factual findings and
interpretation of the NLRA, that the Board did not err in ruling that
Perez’s Facebook post, although vulgar and inappropriate, was not
so egregious as to exceed the NLRA’s protection. Nor was his
Facebook post equivalent to a “public outburst” in the presence of
customers and thus can reasonably be distinguished from other cases
of “opprobrious conduct.”49
In sum, Pier Sixty has failed to meet its burden of showing that
Perez’s behavior was so egregious as to lose the protection of the
NLRA under the Board’s “totality‐of‐the‐circumstances” test.
However, we note that this case seems to us to sit at the outer‐bounds
of protected, union‐related comments, and any test for evaluating
“opprobrious conduct” must be sufficiently sensitive to employers’
legitimate disciplinary interests, as we have previously cautioned.50
We have considered all of Pier Sixty’s objections to enforcement and
have found them to be without merit.
CONCLUSION
To summarize, we hold as follows:
(1) Pier Sixty has forfeited its challenge to the legality of Acting
General Counsel Solomon’s appointment by failing to raise
See, e.g., NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 (1962) (holding that
49
certain employee conduct crosses the line from protected activity to
“indefensible” conduct that loses NLRA protections).
50 See Starbucks, 679 F.3d at 79.
22
it before the Board as required by 29 U.S.C. § 160(e). Since it
has not argued the existence of an “extraordinary
circumstance,” which would allow us to waive the ordinary
rule against considering arguments not presented to the
Board, we do not reach the merits of its FVRA challenge.
(2) The NLRB’s petition for enforcement—urging that Pier
Sixty violated Sections 8(a)(1) and 8(a)(3) of NLRA by
discharging Hernan Perez since Perez’s conduct was not so
“opprobrious” as to lose the protection of the NLRA—is
granted. Our conclusion rests heavily on the deference
afforded to NLRB’s interpretation of the NLRA and its
factual findings, which, in the instant case, were informed
by a six‐day bench trial. We note, however, that Perez’s
conduct sits at the outer‐bounds of protected, union‐related
comments.
For the foregoing reasons, we GRANT the Board’s application
for enforcement and DENY Pier Sixty’s cross‐petition for review.
23