NLRB Says Loud, Profane, Obnoxious, Stalking Employee Discipline was Unlawful

Cheryl Walton, an employee of the United States Postal Service was, for lack of a better term, a troublemaker. She was loud, aggressive, confrontational, and had a reputation for regularly using profanity. During a meeting with her supervisor she became agitated and cut the meeting short. Upset, Walton shook her finger and yelled, “I can say anything I want. I can swear if I want. I can do anything I want.”

Afterwards, Walton started showing up at her supervisor’s office, calling her from the lobby and demanding to see her. Walton even began “closely watching” her supervisor as she arrived for her shift. Walton ultimately received a warning letter for her behavior.

The Board rejected the administrative law judge’s conclusion that Walton had lost protection under the NLRA with a “disturbing pattern of conduct.” The NLRB majority said Walton didn’t lose protection under the National Labor Relations Act despite acting in a way that was “loud, profane, disrespectful, and obnoxious.” “In these circumstances,” the board wrote, “we find that the nature of Walton’s outburst weighs, albeit not by much, in favor of finding that she retained protection of the NLRA.”

In his dissent, Member Miscimrra said the NLRA doesn’t “give an employee carte blanche to invoke the act’s protection, on the one hand, while physically threatening another person, literally, with the other.” “Nor should the board give its own cloak of approval to such conduct, which goes way beyond what anyone would reasonably deem acceptable in a civilized work setting,” he wrote.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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