An NLRB administrative law judge has just upheld the termination of an employee who swore at a management representative. This ruling may seem at odds with the Second Circuit's April ruling upholding the NLRB’s determination that an employee’s vulgar Facebook post was protected activity under the National Labor Relations Act. This alert discusses what employers need to know about the key differences in these two similar cases.

Recently, we reported on a recent decision from the United States Court of Appeals for the Second Circuit, which held that an employee’s Facebook post calling his supervisor a “NASTY MOTHER F***ER” was protected activity under the National Labor Relations Act (the “NLRA”).[1] Because labor law is nothing but unpredictable, one week later an administrative law judge (“ALJ”) at the National Labor Relations Board (the “NLRB”) determined that an employer lawfully terminated an employee who yelled at a management representative, “F**k you and f**k this job!” Although the employee had been engaged in protected concerted activity, the ALJ concluded that the employee lost the protections of the NLRA by his use of profanity. Harbor Rail Services Co., 2017 NLRB LEXIS 211 (NLRB Apr. 28, 2017).

At first glance, these two decisions appear to be completely at odds: How is it possible that an employee who refers to his supervisor as a “NASTY MOTHER F***ER” on Facebook is protected by the NLRA, while an employee who yells, “F**k you and f**k this job!” is not? If anything, the Facebook posting seems more egregious and, by nature of its posting online, would seem to be more public. There are several key distinctions that help explain these vastly different outcomes.

Background

Harbor Rail Services Company (“Harbor Rail”) is an Illinois company involved in the inspection and repair of railroad cars. Most of the employees working for Harbor Rail perform their duties outdoors in various rail yards. Eric Schultz worked at Harbor Rail as a rail car prepper, cleaning and repairing rail cars. On January 8, 2016, Mr. Schultz was complaining to his co-workers about the weather, which was cold and rainy. On that particular day, Mr. Schultz was unhappy because he had been assigned work he was not particularly fond of performing and, on top of that, it was cold and wet. According to Kenyada Clark, the lead person on the shift who communicated assignments to the other employees, Mr. Schultz was working slowly, complaining loudly to his co-workers and “trying to get everybody in an uproar.” Other employees had stopped working to listen to Mr. Schultz gripe about the working conditions and the need to take a lunch break. Mr. Clark saw all of the employees standing around and, because it was not yet time for a break, went over and told them to get back to work. Mr. Schultz did not respond well and hurled obscenities at Mr. Clark, allegedly yelling, “F**k this sh*t!” and “F**k you and f**k this job!” After the outburst, Mr. Clark radioed the main office, and a supervisor and a trainer came out to the work site. Mr. Schultz continued to yell and swear at the supervisor. The two brought the employee back to the office and terminated his employment.

Mr. Schultz filed an unfair labor practice charge against Harbor Rail, claiming that he had been engaged in protected concerted activity at the time of his termination. A hearing was held before an ALJ. While Mr. Schultz acknowledged using obscenities (although he claimed not to recall exactly what he said), he testified that he had asked if he and his co-workers could take a break because they were hungry and it was cold and wet outside. Mr. Schultz further testified that employees frequently cursed in the rail yard but it was just friendly and “wasn’t insulting or in an insulting manner towards anybody . . . .”

Analysis

While the ALJ found much of Mr. Schultz’s testimony to lack credibility, he ultimately determined that Mr. Schultz was trying to get his co-workers to support his complaints about working conditions and was “rowdy” in relation to his complaints. As such, the employee’s actions immediately before his outburst fell within the rights guaranteed by Section 7 of the NLRA, which allows employees to engage in “concerted activities for the purpose . . . of mutual aid or protection.” The question for the ALJ then became whether Mr. Schultz’s outburst was so egregious or opprobrious as to lose the protection of the NLRA.

In applying the four-part test set forth in Atlantic Steel Co., 245 NLRB 814 (1979),[2] the ALJ determined that Mr. Schultz’s conduct was, in fact, so egregious as to fall outside of the protections of the NLRA:

Overall, I find the combination of [the employee’s] insubordinate refusal to return to work and his yelling and use of profanity towards [management’s representative], in front of other employees, as well as his continued yelling and use of profanity when [a supervisor] arrived, was conduct of such a character as to render him unfit for further service.

The ALJ placed particular emphasis on the fact that Mr. Schultz’s outburst occurred in the work area, in the presence of more than a quarter of the employer’s workforce, and had stopped them from working. An employee’s right to engage in protected concerted activity, noted the ALJ, must be balanced against “the employer’s right to maintain order and discipline” in the workplace. The ALJ also found that Mr. Schultz’s use of profanity did not occur “in a moment of animal exuberance” that might excuse his conduct. Accordingly, while the employee may have been engaged in protected concerted activity when complaining to (or with) other employees about working conditions, he lost the protections of the NLRA by his insubordinate and profane statements—not only those directed at Mr. Clark, but also to his supervisor, as well. Therefore, Harbor Rail did not violate the NLRA by discharging the employee for his misconduct.

Pier Sixty vs. Harbor Rail

The ALJ’s decision in Harbor Rail seems curious in light of the apparent bedlam permitted by the NLRB in the Pier Sixty decision, which was subsequently upheld by the Second Circuit. Indeed, how could yelling, “F**k you and f**k this job!” in front of a few co-workers be worse than posting a comment on Facebook, referring to a supervisor as a “NASTY MOTHER F***ER”? In fact, the employee in Pier Sixty didn’t limit his outrage to just his supervisor, insofar as his post included, “F**k his mother and his entire f**king family!!!!”

First and foremost, the NLRB utilizes different tests in determining whether such conduct falls within the protection of the NLRA, depending upon the type of conduct at issue. In addressing instances of off-duty, offsite communications with other employees or third parties using social media, the NLRB utilizes a ten-factor “totality of the circumstances” test.[3] However, when dealing with face-to-face confrontations with supervisors or members of management, the NLRB applies the four-factor Atlantic Steel framework. Different tests may result in different outcomes.

Further, the facts and circumstances surrounding the conduct at issue must be considered. In Pier Sixty, the Second Circuit determined that the employer had engaged in unfair labor practices before the incident[4] and that it was this mistreatment that provoked the employee’s Facebook post. Conversely, the employer in Harbor Rail had not engaged in any such misconduct. Instead, the ALJ determined that the employee’s outburst was fueled, in relevant part, by the employee’s resentment at being assigned to work outside on a cold and rainy day. This is hardly sufficient to explain (let alone justify) the employee’s profane tirade.

Finally, there is an important distinction between the conduct generally tolerated by the employers in these cases. In Pier Sixty, the Second Circuit took particular note of the fact that the employer consistently tolerated the use of profanity among its employees and supervisors, never having disciplined employees for their use of “f**k” and “motherf**ker” in the workplace, even when directed at other employees. In Harbor Rail, however, the ALJ determined that while profanity was not uncommon at the workplace, “it was uncommon for employees to direct profanity at another individual, let alone a member of management.” As such, Harbor Rail had no prior history of allowing employees to get away with conduct similar to that of the complaining employee.

Employer takeaways

While these distinctions may seem confusing, the Harbor Rail decision does not change the recommended practices for employers. Specifically, employers should still:

  • Be consistent in application of discipline. If employers do not approve of vulgar and/or disparaging comments in the workplace, they should take appropriate steps to prohibit such conduct.
  • Carefully consider the context surrounding instances of employee misconduct and consult with legal counsel, as necessary, before taking disciplinary action. Again, this is especially the case with respect to employer discipline arising from an employee’s comments or statements on social media, an area in which the NLRB has taken great interest over the past few years.
  • Take this opportunity to review employee handbooks and policies. Certain previously “standard” policies have been found to violate employees’ right to engage in protected concerted activity. In particular, employers should seek legal review of all non-harassment, social media, confidentiality, non-disparagement, workplace conduct and similar policies if they have not been reviewed recently.
  1. See Nixon Peabody Alert: “#$@&%*!: Second Circuit Upholds NLRB’s Finding That an Employee’s Vulgar Facebook Rant Toward His Supervisor Was Protected Under the NLRA,” available here. [Back to reference]
  2. The Atlantic Steel test requires the balancing of the following four factors: (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, in any way, provoked by the employer’s unfair labor practices. [Back to reference]
  3. While the Second Circuit was not convinced that the amorphous “totality of the circumstances test” adequately balances an employer’s interests, it nonetheless affirmed the NLRB’s Pier Sixty decision, which utilized this test. [Back to reference]
  4. Notably, Pier Sixty’s decision to discharge the employee for his Facebook post occurred two days prior to a scheduled union election. The Second Circuit determined that immediately prior to the election, Pier Sixty had consistently demonstrated hostility toward employees involved in union activities, threatening to rescind benefits or fire employees who voted for unionization and enforcing a “no talk” rule on groups of employees. [Back to reference]