Employers often adopt civility policies, including policies that prohibit employees from using threatening or intimidating language, or using abusive or vulgar language towards co-workers or supervisors.  Violations of those policies, warn employers, may result in disciplinary action, including termination of employment. The National Labor Relation Board (the Board) recently found that a Nexteer Automotive Corp. employee who shouted profanity at a supervisor and human resources employee was wrongfully terminated by his employer because of his protected activity. Therefore, before taking any type of disciplinary action against an employee who uses foul or vulgar language, employers should consider if the employee’s conduct is protected by the National Labor Relations Act (the Act).

Nexteer Automative Corp. v. Local 699

The Board case involved Nexteer Automotive Corp., a manufacturer and parts seller for the automotive industry. The worker was a committee member or union officer for Local 699, International Union, United Automobile and Agricultural Implement Workers of America (UAW), AFL-CIO. The union officer yelled profanities (“fuck you” and “go fuck yourself”) in a closed door meeting.  The meeting involved only three individuals: a union officer, a supervisor, and a human resources employee.  The purpose of the meeting was to allow the union officer to air his concerns about interference with his representation of bargaining unit members, the performance of bargaining unit work by non-members, and safety issues. While discussing bargaining unit workers’ safety, the union officer shouted profanities at the supervisor and then left. Following an investigation of the incident, the employer terminated the union officer for violating its civility policy and its workplace violence policy. The union officer filed suit before the Board.

Atlantic Steel Factors

The Nexteer Automotive case is only the most recent case which seems to condone workplace profanity and insubordination. However, the Board analyzes the lawfulness of terminations involving profane language by looking at the Atlantic Steel factors to determine if such profane language merits the protections of the Act.  An employee loses the protection under the Act through a balancing act of four factors (based on the case Atlantic Steel Co., 245 NLRB 814 (1979)) which include: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was provoked by the employer’s unfair labor practices.

The first and second factors weighed heavily in allowing the union officer to retain the protections of the Act. The union officer’s use of profanity was protected by the Act because the place of discussion was behind closed doors with only three people present. Keep in mind that an employer’s interest in maintaining order and discipline in the employer’s establishment is affected less by a private outburst in a manager’s office away from other employees than an outburst on the work floor witnessed by other employees. In other words, if unit employees or other rank-and-file employees heard the obscenities, the employee could potentially lose the protection of the Act.

The second factor concerning the subject matter weighed heavily in favor of continued protection because it involved the interests and welfare of bargaining unit employees. Generally, the nature of an employee’s outburst will be examined in the context in which it occurred.

The third factor also weighed in favor of continued protection. Regarding the nature of the employee’s outburst, the Board found that though the union officer used crude language, he did not engage in any physical violence, did not involve any touching, and he did not make any threat, either express or implied, against either the supervisor or the human resources employee.

However, the fourth factor weighed in favor of the forfeiture of protection. As to the last factor (whether the outburst was provoked by the employer’s unfair labor practices), the Board stated that the union officer complained about employer conduct that, if proven to be true, could arguably constitute an unfair labor practice. However, that potential unfair labor practice was not alleged in a complaint and was not fully litigated before the Board.

Conclusion

The NLRB found the employer had discriminatorily discharged the union officer and ordered full and immediate reinstatement and ordered the employer to pay the employee for any loss of earnings and other benefits (with interest).

Recommendations

Look at the totality of the circumstances involving decisions to terminate an employee for using language that could be abusive, foul, profane, and obscene or otherwise violates an employer’s civility policies. The individual’s conduct may enjoy the protection of the Act.

The full text of the case can be viewed here.