“Loud, Profane, Disrespectful” And “Confrontational” Employee Misconduct Not Sufficient to Warrant Discipline, According to the NLRB

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05/23/2017

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“Loud, Profane, Disrespectful” And “Confrontational” Employee Misconduct Not Sufficient to Warrant Discipline, According to the NLRB

By Jacquelyn E. Larson

The NLRB recently issued yet another troubling decision in its ongoing campaign against an employer’s ability to enforce discipline in the workplace. Last week, in a dispute between the United States Postal Service and American Postal Workers Union, AFL-CIO, Local 128, the Board ruled that a confrontation during which an employee “pepper[ed] her language with profanity,” “used ‘the F word a lot,’” and aggressively moved and gestured toward a supervisor, was not extreme enough conduct for the employee to lose her protections under the National Labor Relations Act (“NLRA”).

Under existing law, an employee can lose the protections of the NLRA by engaging in certain egregious misconduct. Employee misconduct like profane, threatening, and violent outbursts at a supervisor can justify an employer taking lawful disciplinary action, even when the interaction involves protected subject matter. The Board will also look at other factors beyond the subject matter of the discussion and the nature of the outburst, including where the outburst took place and whether the outburst was provoked.

Yet, in last week’s United States Postal Service decision, the Board held that since the employee – a union steward – was engaged in protected conduct discussing employee grievances, her behavior was excused, even though the Board conceded her behavior was “loud, profane, disrespectful, … obnoxious” and “confrontational.” Specifically, in the meeting between the employee and the supervisor, after a disagreement arose, the employee told the supervisor that she was “being an a--.” The employee became frustrated and profane. When the supervisor said she was going to end the meeting, the employee stood up, tipping her chair back in the process, and stepped toward the supervisor. The employee shook her finger and said, “I can say anything I want. I can swear if I want. I can do anything I want.” When the supervisor began to disagree with these statements, the employee took another step towards the supervisor and loudly repeated that she could say and do whatever she wanted.

According to the Board, the employee was apparently correct. After the meeting, the employee even began stalking the supervisor, sitting on a bench near where the supervisor worked each day, appearing at the supervisor’s office and closely watching her. The supervisor eventually secured a protective order against the employee in state court.

Despite all these concerning behaviors, the Board ruled that, while qualifying as “salty,” the employee’s conduct still did not lose her the protections of the NLRA. Because the context of the meeting related to employee grievances, the employer could not discipline her for this behavior without engaging in an unfair labor practice.

COUNSEL TO MANAGEMENT:

This decision is yet another unfortunate example of the Board chipping away at an employer’s discretion to discipline employees in cases of obvious misconduct. If you have questions about employee discipline or labor relations generally, contact the experts at The Saqui Law Group.


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