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It's okay to discipline employees for using profanity . . . isn't it? Not necessarily.

A recent decision of the National Labor Relations Board (the "Board") serves as a convenient reminder that employers must exercise restraint when dealing with employees who are engaged in activity protected by the National Labor Relations Act ("NLRA").

In this case, the Board determined that an employer violated the NLRA by disciplining a union steward for using profanity toward a supervisor during a disciplinary meeting. (Alcoa Inc., N.L.R.B. No. 141, 8/29/08)

An Alcoa employee (exercising his Weingarten rights) asked his union steward, Mark Hewitt, to represent him during a disciplinary meeting with management. During that meeting, Hewitt pointed at a supervisor, used a four-letter expletive to describe the supervisor, and expressed his view that the disciplinary action against the employee was unfair. Hewitt was promptly suspended for insubordination and abusive and offensive behavior toward the supervisor. The union filed an unfair labor practice charge with the Board, alleging that Alcoa had violated Hewitt's right to engage in union activity protected by the NLRA.

The Board agreed that Alcoa had violated the NLRA by suspending Hewitt, because Hewitt was acting as a union representative at the time of the incident. In determining whether an employee's conduct (such as Hewitt's outburst) is protected by the NLRA, the Board considers: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's conduct; and (4) whether the conduct was in any way provoked by an employer's unfair labor practice. Although Hewitt's outburst was not provoked by an unfair labor practice, the Board found that the other factors weighed in Hewitt's favor. Specifically, the Board noted that Hewitt's use of profanity occurred in the course of discharging his representative duties.

An employer normally would be free to discipline or discharge an employee for this or similar conduct. The presence of a union in the workplace changes things, especially where otherwise unacceptable conduct occurs in the course of protected activity. As this case indicates, the NLRA cloaks union representatives with protections that can trump normal disciplinary rules. Conduct that may normally warrant disciplinary action, such as the use of profanity, may be protected if occurs in the course of a union representative's discharge of his or her representative duties. There are, of course, limits to what is protected (e.g., Hewitt would not be protected if he had punched the supervisor), but the limits are poorly defined and highly fact sensitive.

Unions are well aware of the NLRA's protections, and they typically ensure that employees who are selected to serve as union representatives also know what they can "get away with." Employers who don't know and follow the law are at a disadvantage. This case should remind employers to resist the temptation to rush to discipline an employee acting as a union representative for what would be legitimate reasons in other circumstances.

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group.


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About Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 200 legal professionals in six offices, serving local, national and international clients in virtually every industry. A forward-thinking business law firm, Greenebaum is committed to the practice of Breakthrough Law®. 

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