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The NLRB and Civility: A 2015 Update (Part I of II)

By W. Terrence Kilroy

One year ago, a number of authors contended the NLRB, because of several decisions, was responsible for the decline in civility in the workplace.  They suggested the NLRB “condoned workplace profanity and insubordination”; others suggested the NLRB had “killed” workplace civility.  There was a fair amount of hyperbole in those articles.  Yes, management lawyers, myself included, were very disappointed in those Board decisions.  The pro-union majority seems likely to retain control until at least August 2018, and employers should develop strategies to minimize the impact of those decisions.  Fortunately, several 2015 developments provide greater guidance to employers.  My first post offers guideposts for lawfully meting discipline for vulgarity and other uncivil behavior in the workplace.  My second post, forthcoming next week, suggests how employers may draft lawful civility work rules.

Importantly, NLRB limitations on discipline for profanity and abusive language only apply when an employee is engaged in union activities or protected concerted activities.  Concerted activities have been generally limited to group complaints brought to management’s attention, or where an individual seeks to induce group action.  Where concerted or union activities are not involved, employers may take disciplinary action for use of profanity and uncivil conduct, without fear of NLRB action. 

The NLRB has dealt with uncivil behavior and profanity frequently over its eighty (80) years.  The Board has generally recognized that, in labor relations matters, emotions can run high, and angry employees will sometimes use vulgar and profane language in an atmosphere of conflict.  The Supreme Court noted in 1966 that “the NLRB tolerates intemperate, abusive and inaccurate statements” in union campaigns.  Other cases arose out of strikes where strikers were found to be protected from discharge, even if vulgar or profane, unless the verbal statements are accompanied by physical threats or gestures or are aggravated.  As a consequence, the NLRB has regularly upheld an employee’s exercise of Section 7 rights, including leeway for impulsive and profane comments made while exercising those rights. 

But the Board’s tolerance of uncivil workplace conduct is not unlimited.  The Board and federal courts have held that an employee exercising Section 7 rights can lose his/her protection if the employee’s concerted actions about working conditions are sufficiently “opprobrious”.  The NLRB has held that grabbing or shoving a supervisor as part of an otherwise lawfully protected protest will lose the protection of the Act.  However, telling a supervisor that he was the “devil” and “Jesus would punish him” while engaged in concerted activities did not lose the Act’s protection. 

The line between protected and unprotected uncivil and insubordinate behavior is not a bright one.  Whether an employee has engaged in “opprobrious conduct,” which loses the Act’s protection, depends upon (i) the place of the discussion (work or non-work area); (2) the subject matter of the discussion; (3) the nature of the outburst; and (4) whether the employer provoked the outburst.  If there is an inappropriate physical touching accompanying the outburst, this will likely make the employee’s behavior unprotected.

But the “opprobrious conduct” defense is not the only basis for an employer to discipline an employee engaged in profanity while exercising Section 7 rights.  If an employer can demonstrate that the employee would have discharged an employee for profanity, even in the absence of protected activity, it is a defense to an alleged NLRB violation (Wright Line defense).  Thus, an employer that consistently enforces a profanity rule by terminating the offender, may lawfully terminate an employee who curses at his supervisor while making protected safety complaints.

A recent example of an employer’s need to consistently enforce profanity rules is Pier Sixty, L.L.C. decided in March.  In that case, a disgruntled employee, after a confrontation with his manager, made a Facebook posting which repeatedly used the F word in reference to his boss and relatives and finished with “Vote YES for the UNION!!!!!!!”  The post was visible to his Facebook friends including ten co-workers.  While the post was clearly profane, the Board refused to find the comments unprotected because “vulgar language (was) rife in (the employer’s) workforce” and some executives curs(ed) at employee’s daily.  The Board noted that supervisors frequently used the F word toward employees.   

The Board has also recently demonstrated that the consistent application of work rules can be a defense to a discharge for threatening and vulgar statements.  This June, the NLRB reconsidered its 2012 decision, Fresenices USA Mfg. The 2012 decision in Fresenices was cited by authors as proof for NLRB of his hostility toward civility in the workplace.  In the June decision, the Board reversed itself.  Unlike the prior decision which found that the vulgar and threatening remarks were protected and did not lose the Act’s protection, the June decision backed away from that conclusion and “reserved judgment” on that issue. The June decision held the discharge was however lawful as the company had a practice of terminating employees guilty of dishonesty – and would have reached the same decision – even in the absence of Section 7 activity.  This was a small, but favorable, step by the Board.