Employee Terminated for Profanity Reinstated because Profanity was Pervasive at Facility

A Coca-Cola bottler unlawfully fired a union steward who used profanity in front of company executives and dozens of employees. The ALJ said the National Labor Relations Act gives employees “some leeway for impulsive behavior,” and the decision illustrates that profanity in the workplace isn’t likely to take an employee outside the protection of federal labor law.

Heartland acquired a distribution center and warehouse in St. Charles, Mo., where Teamsters Union Local 688 represented employees. The Company had a backlog of orders and employees were scheduled to work extensive overtime. In March, the Company failed to give employees advance notice before trying to schedule work on their usual day off, a Friday. Without the advance notice, Heartland could not force the employees to work.

Heartland asked for volunteers, but no one came forward. A company vice president said, “Look guys, I get it. We’re all fucking tire,” but he pleaded with employees to come in on Friday. The Company invited a bargaining unit member to address the crowd. That member stood up and said “if you come in, do your business, do what you need to do, and if they lie to you and you’re still doing 16 hours, fuck ‘em. Don’t come in on your off day. Don’t do any more favors.” The Company fired the employee for saying that.

The employee was clearly talking about work-related issues, so his discharge was unlawful unless his language was so “egregious or opprobrious” that he forfeited his legal protections. In weighing such questions, the National Labor Relations Board considers the place of the discussion, the subject matter, the nature of the employee’s outburst, and whether the outburst was provoked by any employer unfair labor practices. The employee was awarded reinstatement and back pay because profanity was common at the warehouse.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.