## Facts

- Pier Sixty, LLC operated a catering business in New York City; relations between management and servers were tense during a union organizing drive and impending representation election.
- Workplace culture included supervisors’ frequent use of profanity and demeaning treatment of employees.
- Two days before the election, server Hernan Perez, after a heated interaction about work pace at a banquet, posted on Facebook a vulgar, insulting message about a supervisor (“Bob”) and ended with “Vote YES for the UNION.”
- The post was visible to coworkers (Facebook “friends”), did not name the employer, and was made off-site during a work break.
- Pier Sixty discharged Perez, citing policies against harassment, bullying, and obscene language.
- The NLRB’s General Counsel issued a complaint alleging discharge for protected activity in violation of NLRA §§ 8(a)(1) and 8(a)(3).
- After a six-day hearing, an ALJ found the discharge unlawful; the Board adopted the findings and ordered reinstatement and back pay.
- The NLRB sought enforcement in the Second Circuit; Pier Sixty cross-petitioned for review, including a challenge to the Acting General Counsel’s appointment under the Federal Vacancies Reform Act (FVRA).

## Issues

1. Whether NLRA § 10(e) barred Pier Sixty from raising an FVRA challenge to the Acting General Counsel’s appointment because it was not presented to the Board, absent “extraordinary circumstances.”
2. Whether Perez’s profane, insulting Facebook post was so “opprobrious” that it lost NLRA protection, making the discharge lawful under §§ 8(a)(1) and 8(a)(3).

## Decision

- The court held Pier Sixty forfeited its FVRA objection under NLRA § 10(e) by not raising it before the Board; no extraordinary circumstances excused the failure.
- The court upheld the Board’s finding that Perez’s post remained protected concerted, union-related activity and was not so abusive as to lose protection under the Act.
- The court granted the NLRB’s petition for enforcement and denied Pier Sixty’s cross-petition for review.

## Legal Principles

- Under NLRA § 10(e), a court generally may not consider objections not urged before the Board unless extraordinary circumstances excuse the omission.
- Employees may lose NLRA protection through “opprobrious conduct,” but the Board may assess alleged abusiveness using the Atlantic Steel factors: (1) place of the discussion, (2) subject matter, (3) nature of the outburst, and (4) provocation by employer conduct.
- In reviewing Board applications of the NLRA to fact-intensive disputes, appellate courts give substantial deference to the Board’s supported factual findings and balancing.
- Off-site, coworker-directed social media speech tied to workplace grievances and union advocacy can remain protected, even if vulgar, where context shows comparable tolerated profanity and employer provocation.

## Conclusion

The Second Circuit enforced the NLRB’s reinstatement and back-pay order, holding that Pier Sixty could not belatedly litigate an FVRA appointment challenge and that, in context, Perez’s profane union-election Facebook post did not forfeit NLRA protection under the Atlantic Steel framework.


NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017)