Profanity and Aggressive Physical Conduct May Be Protected Activity

The National Labor Relations Board found that a union steward’s use of profanity and “aggressive physical conduct” in a location visible to employees and customers may be protected by the National Labor Relations Act.

In Greyhound Lines, Inc., a chief union steward was terminated for his conduct during a confrontation with a company manager over the manager’s alleged mistreatment of a fellow employee. The Board found that the steward was engaged in protected union activity during the confrontation. Under Board law set forth in the 1979 case of Atlantic Steel Co., however, an employee’s misconduct may cause the loss of protection under the Act, depending on four factors:

(1) the location 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.

In applying these factors, the Board found that the first factor was neutral, in that there was no evidence that customers actually saw or were impacted by the confrontation, and other employees did not know what happened. The second factor favored protection, since the union steward was acting in his official capacity when he approached the manager. The third factor was also found to be neutral. Although the use of profanity and threatening gestures would normally argue against protection, there was evidence that employees and management alike at the facility regularly used similar profanities and that no one had ever previously been disciplined for the use of profanity. Finally, the Board found the last factor to favor protection, as the union steward’s outburst was in reaction to the manager’s yelling and pointing at him. Consequently, after considering the four factors, the Board found that the union steward did not lose the protection of the Act, and his termination was therefore unlawful.

This case illustrates that conduct that would normally be found unacceptable may, in fact, be protected under specific circumstances – including the type of conduct normally tolerated in the workplace.