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Protected Concerted Profanity

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Should employees be allowed to cuss out the boss?

Crossposted from the Workforce Freedom Initiative blog

At the National Labor Relations Board (NLRB), administering the law impartially has been a challenge for the last few years, given the Board's openly pro-union tendencies. As part of its ongoing effort to hamper employers' ability to manage their own workplaces, the NLRB has gone to great lengths to reinterpret the law to the detriment of common sense. In just the latest example of this tendency, the Board has now decided that employers must tolerate profanity and belligerent behavior by employees, as a recent case illustrates.

The case in question involved a salesman at an automobile dealership who seems to have had conflicts with his employer almost as soon as he began working there. During his tenure, which lasted just two months, the salesman made various complaints about a variety of issues ranging from the commission he earned to the timing of breaks during his work day. The employee's managers brought the salesman's complaints to the attention of the owner of the business, who called a meeting with the employee and the two sales managers.

According to the NLRB, at the outset of the meeting the owner did not intend to fire the employee. However, as the meeting continued the employee proceeded to lose his temper and berate the owner loudly, telling him "that he was stupid, nobody liked him, and everyone talked about him behind his back." And, for good measure, he got up, pushed his chair aside, and called the owner a number of profane names, including a few beginning with the letter "F." The owner then fired the employee, who complained to the NLRB over his dismissal. 

An administrative law judge (ALJ) found that the employee had stripped himself of protection under the National Labor Relations Act (NLRA) because of his "belligerent" behavior and by berating the owner "in obscene and personally denigrating terms accompanied by menacing conduct and language." Notwithstanding, the NLRB reversed that decision. The Ninth Circuit Court of Appeals next got the case and concluded the NLRB "had erred in its initial assessment" of whether the employee's behavior stripped him of NLRA protection. Thus, it ordered the NLRB to reevaluate its decision and offer a "reasoned explanation" if it chose to ignore the ALJ's finding that the employee's behavior was belligerent and menacing, and thus unprotected.

Hence, a three-person Board panel issued its recent ruling in response to the court's order. In the decision, the majority found that even though the employee "targeted [the employer] personally, uttered his obscene and insulting remarks during a face-to-face meeting with [the employer], and used profanity repeatedly," that was not enough to cause him to lose NLRA protection. Citing another case, the majority observed "the language of the workplace 'is not the language of 'polite society,'" and concluded that the employee's rights outweighed "the employer's need to maintain order and respect in its establishment."

The one dissenting board member vehemently rejected the majority's reasoning, saying "my colleagues' analysis of the permissible range of profane and insubordinate conduct by employees toward management is cause for disagreement. Their approach implies that such misbehavior is normative, or at least that the [NLRA] mandates tolerance of it whenever profane and menacing outbursts are somehow connected to protected concerted activity." While the law permits "some leeway" in protecting impulsive behavior when it comes to such activity, he opined, it certainly does not allow employees "unrestrained freedom" to act as they wish.

The dissent calls the Board "out of touch," which just about sums things up. The current majority seems to think it is perfectly normal for employees to use vulgar language and that employers should tolerate it. In reality, most employers do not allow their employees to curse "like characters in a Scorsese film," and one could be forgiven for thinking an employer has the right to dismiss insubordinate and disrespectful employees. According to the bizarro world NLRB, that is no longer the case.

The NLRB seems to have moved from rewriting some of the more arcane provisions of labor law to flat out undermining the ability of employers to exercise even the most basic principles of running a business.  When describing the absurdity of the Board's actions, it's getting hard to avoid using some expletives of our own.

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