By Cary Burke
On October 23, 2017, a National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) ruled that Heartland Coca-Cola Bottling Co. (Heartland) unlawfully fired a union steward who uttered profanity during a meeting attended by company executives and employees. While the company argued the union steward was terminated for violating a work rule prohibiting misconduct, the ALJ determined the union steward’s comments were sufficiently related to his fellow union members’ working conditions, and remained protected activity under the National Labor Relations Act (NLRA).
The case arose when Heartland experienced a backlog of customer orders and told its employees, who were represented by the Teamsters, they would have to work “extensive overtime.” In early March, 2017, Heartland needed workers to assist with back orders on a Friday, which typically was a group of employees’ day off. Problematically for Heartland, the company inadvertently did not provide the group of workers with advance notice of the need for overtime. Without such advance notice, Heartland could not require the employees to work on their scheduled day off.
The Teamsters suggested Heartland ask for volunteers to work. No one volunteered, so Heartland convened a meeting to discuss the need for employees to work overtime. During the meeting, the union steward spoke. He urged his fellow union members to “step up” and help, and then added, “If you come in, do your business, do what you need to do, and if they [Heartland] lie to you and you’re still doing 16 hours, f--- ‘em.” The union steward was fired soon thereafter, and the Teamsters filed unfair labor practice charges, contending the union steward was terminated for engaging in statutorily-protected activity.
The ALJ sided with the Teamsters. When ruling the union steward was unlawfully terminated, the ALJ explained that an employee who discusses terms and conditions of employment during a meeting with management is engaged in protected activity. Furthermore, the union steward’s use of profanity did not destroy this protection, as the profanity was not “sufficiently egregious or opprobrious.” Moreover, the comments occurred in a meeting with employees and management, and were tied to the union steward’s discussion of the employees’ conditions of work. Accordingly, the unfair labor practice charge was sustained, and the ALJ required Heartland to reinstate the union steward without prejudice to his seniority. Heartland was also required to compensate the union steward for any “search for work” or “interim employment expenses, regardless of whether those expenses exceed his interim earnings.”
This decision reminds employers to tread carefully when considering whether to reprimand or otherwise discipline an employee for crass or profane speech in the workplace. To the extent the employee may have advocated on behalf of themselves and others regarding terms and conditions of employment, that speech, however untoward, could be protected. Disciplining or terminating that employee would risk an unfair labor practice charge.