Cussing Out The Boss May Be Protected

By Jon Watson

During a meeting about commissions and minimum wage and about his own and other sales peoples’ breaks, an employee lost his temper. In a raised voice he called his supervisors names, including “f***ing mother f***ing,” f***ing crook[s],” and an “a**hole,” among others. He also stood up, pushed his chair aside, and told his supervisors that if they fired him, they would regret it. As a result, the employee was discharged. He then filed an unfair labor practice charge with the N.L.R.B.

On remand from the Ninth Circuit, the Board concluded that the employee’s outburst was not outside the bounds of protected conduct. After all, he did not explicitly threaten violence, did not act violently, and did not have a history of violence. Moreover, protecting the employee from retaliation based on the meeting would serve the goal of fostering collective action without unduly impairing the employer’s interest in maintaining workplace order and discipline. Plaza Auto Ctr., Inc., 360 N.L.R.B. No. 117, 5/28/14

How, exactly, an employer is supposed to maintain a civil workplace remains to be seen.