The National Labor Relations Board ruled last week that a railroad car repair company properly terminated an employee after he hurled numerous obscenities at his supervisor, including telling the supervisor to “f*** you and f*** this job.”
NLRB Judge Gollin found that although the employee was also engaged in protected concerted activity at the time (requesting that he and his coworkers be allowed to take their lunch break and complaining about working in bad weather), the vulgar tirade caused him to lose his protections under the National Labor Relations Act (NLRA) because his “profane statements [were] directed at members of management, in the work area, in the presence of other employees.”
Judge Gollin rejected the argument that the employee’s use of obscenities could not have caused him to lose the protection of the NLRA because profanity was common at the workplace. Judge Gollin reasoned that even if so, it was uncommon for employees to direct profanity at another individual, let alone a member of management. Ultimately, Judge Gollin found that the combination of the employee’s insubordination, yelling, and use of profanity toward his supervisor, in front of other employees, rendered him unfit for further service. Judge Gollin’s decision can be found here.
This decision follows a recent Second Circuit decision that upheld the NLRB’s finding that obscene language posted on Facebook about an employee’s supervisor was protected concerted activity because the employer had permitted rampant use of obscenities in the workplace and the post also related to an upcoming union vote. Despite the seeming inconsistencies with these rulings, it is a good reminder to employers to check their workplace conduct policies and practices to ensure that employees who use obscenities in the workplace are being treated consistently. To read more on the Second Circuit’s decision, see our prior blog post, here.
