Recent NLRB Ruling Demonstrates How Profanity And Threats Can Be Protected Activity

By Kamer Zucker Abbott

April 23, 2020

In a recent decision by the National Labor Relations Board (NLRB or Board) we are reminded that protected activity is not always polite and that the National Labor Relations Act (NLRA or Act) protects such conduct unless it is “sufficiently egregious or opprobrious to remove it from the protection of the Act.”

In the case of Alle Processing Corp. the Board addressed the termination of Joel Wilson, who, during a heated meeting in his manager’s office, used profanity, raised his middle finger to the Human Resources Manager, stated: “I will fix this on the street,” and attempted to throw a carousel holding Keurig cups. In determining that Wilson’s conduct did not lose the protection of the NLRA (and that he should be reinstated), the Board assessed:(1) the place of the confrontation;(2) the subject matter;(3) the nature of the outburst;and (4) whether the outburst was provoked by the employer’s unfair labor practices.These criteria are intended to permit “some latitude for impulsive conduct by employees” during protected concerted activity, while acknowledging the employer’s “legitimate need to maintain order.”

Wilson’s conduct was protected by the NLRA under these factors because: (1) his conduct took place in an office, away from a work area, in the presence of only managers; (2) his outburst was directly related to his strong desire not to sign a union dues checkoff authorization and was, therefore,an assertion of a fundamental right under the NLRA; (3) profanity was not uncommon in the workplace and occasionally occurred in discussions with supervisors, there was no rule against profanity and no one had been disciplined for using it before, and his attempt to throw the coffee carousel happened after the HR Manager discharged him; and (4) Wilson was provoked both by the HR Manager’s comments and by the “overall sequence of events—with Wilson subjected to mandatory meetings with managers of increasing authority who repeatedly demanded that he sign a dues-checkoff authorization despite his protestations—constituted coercive behavior on the part of Alle under the pertinent case law.”

This case serves as a good reminder of how far the Board will go to protect an employee’s rights to engage in protected activity and how credibility determinations will greatly impact results (as the fact finder rejected the HR Manager’s testimony that Wilson actually made a more severe threat of violence). You may remember that the Board previously announced that it is considering whether to change its criteria for evaluating these types of outbursts in the workplace. No decision has yet been issued on this standard. For now, therefore, the standard applied in Alle Processing continues to govern cases of profanity and threats.

If you have questions about this standard or this case, please contact a KZA attorney.