Second Circuit Affirms NLRB Ruling that Vulgar Language in Facebook Post Was Protected Under the NLRA

Tuesday, May 16, 2017
During a 2011 organizing campaign, Pier Sixty, LLC, a catering company in New York City, terminated an employee two days before a union election. The Second Circuit ruled that even though the employee’s message was dominated by vulgar attacks on his supervisor and his family, the “subject matter” of the message included workplace concerns -- management’s allegedly disrespectful treatment of employees, and the upcoming union election. The Court found that Pier Sixty had demonstrated its hostility toward employees’ union activities in the period immediately prior to the representation election and proximate to the employee’s post. The Second Circuit concluded that the NLRB could reasonably determine that the employee’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.
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