Why it matters

An administrative law judge with the National Labor Relations Board upheld a worker’s termination based on his use of profanity, determining that he stepped outside the bounds of the protection of the National Labor Relations Act. Railroad car repair worker Eric Schultz engaged in a conversation with a supervisor that began with a request for a lunch break and complaints about working in bad weather and devolved into a profanity-laced tirade (including “F**k you” and “f**k this job”), for which he was fired. Schultz filed a charge with the NLRB, asserting that his comments about the break and the weather constituted concerted activity protected by the NLRA. But the ALJ disagreed. “Overall … I find that while Schultz may have been engaged in protected, concerted activity when he complained to other employees about working out in the rain and cold, he lost the protection of the act by his insubordinate conduct and profane statements directed at members of management, in the work area, in the presence of other employees,” the ALJ wrote. Schultz was unable to sway the ALJ with his argument that profanity was common in the rail yard. The decision stands in contrast to a recent opinion from the U.S. Court of Appeals for the Second Circuit, where the panel found that a profane social media post remained under the protection of the NLRA.

Detailed discussion

Located in Belvidere, IL, Harbor Rail Services Company performs railcar repair, inspection, cleaning and pretrip services for railroad companies at various locations. Eric Schultz began working for the company in October 2015 as a pretrip laborer. His duties included cleaning railcars and getting them ready for use. Each morning, a supervisor would make the daily job assignments, which varied from day to day.

On Jan. 8, 2016, Schultz was assigned to prep railcars. It was a cold and rainy day, and Schultz spoke to the other workers about the weather conditions. Supervisor Kenyada Clark came out to the work site, and a verbal confrontation ensued between Clark and Schultz during which Schultz directed obscenities at Clark. Schultz was terminated and filed an unfair labor practice charge against HRSC.

After a hearing before Administrative Law Judge Andrew S. Gollin, the ALJ determined that Schultz’s use of obscenities was so opprobrious that it caused him to lose the protection of the National Labor Relations Act (NLRA). “I find that Schultz was engaged in protected, concerted activity prior to the confrontation, but his statements and insubordinate conduct caused him to lose the protection of the Act,” the ALJ wrote, meaning the employer’s decision to discharge him did not violate Section 8(a)(1).

Schultz testified that the employees were “irritated” because they were cold and wet and believed they were not going to get a break for another hour or so. The conversation with the supervisor “escalated,” he told the ALJ, and while employees were cursing it was “not in a threatening fashion.” While he admitting to using obscenities directed at Clark, Schultz said profanity was common in the rail yard.

In his testimony, Clark said Schultz was trying to “rowdy up the team,” and “stopping people from doing their job.” Since it was not break time, Clark asked Schultz to stop making those comments, and he responded by yelling and cursing at Clark, including “F**k this s**t,” “F**k this job” and “F**k you.”

Weighing the credibility of the two witnesses, the ALJ credited Clark over Schultz, whose testimony “seemed contrived, self-serving, and calculated to neatly fall within the parameters of what the law requires.” Gollin wrote that the testimony “struck me as an exaggerated effort by Schultz to portray his actions as concerted, as opposed to personal griping.” Schultz also minimized or omitted key events until cross-examination.

After establishing the events in question, the ALJ determined Schultz was initially engaged in protected, concerted activity under Section 8(a)(1) of the NLRA. “Even though Schultz was the only one Clark heard complaining about the weather, and while it may have been in the context of his personal griping about having to work outside on the railcar rather than on the supply buggy, Schultz was, using Clark’s phrases, ‘trying to get everybody in an uproar’ and trying to ‘rowdy up the team’ by walking around talking to them about his complaints about the weather,” Gollin said.

There was no dispute that the employer took action against Schultz for conduct that occurred while he was engaged in protected activity, but applying a four-factor test, the ALJ found that his conduct was sufficiently opprobrious to remove it from the protection of the NLRA. The first factor, the location where the outburst occurred, was very significant in balancing the employee’s right to engage in protected activity against the employer’s right to maintain order and discipline in the workplace—and weighed heavily in favor of HRSC.

“An employer’s interest in maintaining order and discipline is affected less by a private outburst in an area away from other employees than an outburst in the work area that is witnessed by other employees,” the ALJ explained. “Schultz’s outburst occurred in the work area, in the presence of more than a quarter of [the employer’s] workforce that Schultz had stopped from working at the time.”

The second factor—the subject matter of the discussion—weighed in favor of protection. “Even though Schultz and the other pretrip laborers were expected to work outside in the elements, Schultz’s raising issues about the weather and working outside relates to working conditions, and, therefore, is a subject matter that favors protection,” Gollin wrote.

But the third factor, the nature of the outburst, weighed against protection, the ALJ said. Schultz’s contention that profanity was common in the rail yard overstated the evidence. While profanity was used, it was not typically directed at other individuals, let alone a member of management. “I find the combination of Schultz’s insubordinate refusal to return to work and his yelling and use of profanity toward Clark, in front of other employees, as well as his continued yelling and use of profanity when [another supervisor] arrived, was conduct of such a character as to render him unfit for further service,” the ALJ wrote.

The final factor—whether the misconduct was provoked by an unfair labor practice—did not weigh in favor of protection, Gollin noted. “Overall … I find that while Schultz may have been engaged in protected, concerted activity when he complained to other employees about working out in the rain and cold, he lost the protection of the Act by his insubordinate conduct and profane statements directed at members of management, in the work area, in the presence of other employees,” the ALJ concluded.

To read the decision in Harbor Rail Services Company, click here.