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4th Circuit Repudiates NLRB, Rules For Employer In Case Of Employee Dismissed For Profane Remark About Company VP

By Sean E. Andrussier

Yesterday the Fourth Circuit issued a significant decision repudiating the NLRB. The NLRB had ruled that an employer had unlawfully discharged an employee for making a profane remark about the company's VP during a period when the union was renegotiating a collective bargaining agreement. A split Fourth Circuit panel disagreed. Judge Duncan wrote the majority decision; Judge King dissented. The case is Media General Operations, Inc. v. NLRB.

The case involved the dismissal of an employee for making a profane, derogatory remark about the company's VP, during work hours and in the work place, in connection with the renegotiation of a union collective bargaining agreement. He referred to the VP as an "f***ing idiot" or a "stupid f***ing moron." He made the comment to supervisors because he was upset about a letter the VP had written to employees about the renegotiation process--a letter that was neither unlawful nor inaccurate and that the employee hadn't read. The NLRB concluded that the National Labor Relations Act (Act) protected the employee's use of profanity about his employer and that his dismissal was unlawful. The Fourth Circuit disagreed.

A preliminary issue the Court had to confront was whether the NLRB was correct in concluding that the employee's statement was "concerted activity" within the meaning of the Act. The NLRB concluded that his statement was "concerted activity" because "it was part of an ongoing collective dialogue between [the VP] and the unit employees about the substance and process of the contract negotiations" and was "a logical outgrowth of the prior collective and concerted activity." The Fourth Circuit found no error in that conclusion, though the Court noted that "the conduct in question skirts the outer bounds of that which can be considered concerted activity under the Act?s auspices." Why? Because his derogatory comment "was part of a conversation he individually initiated; it was not temporally associated with the actual negotiations in question or the actions that prompted it; and it could not have been directly responsive to the [the employer's] negotiating positions, since [the employee] prefaced the remark by stating that he had not yet read [the VP's] letter."

The Court observed, however, that an employee may forfeit the Act's if the conduct is "egregious or flagrant." The Court held that the employee forfeited the Act's protections. The Court so held after applying one of the NLRB's balancing tests, which examines: "(1) the place 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 an employer?s unfair labor practice." While the first two factors favored the employee and the last factor favored the employer, the focus was on the third factor. Here the Court held that the NLRB "overreached as a matter of law in finding that the conduct in question was not so egregious as to forfeit the protection of the Act." The Court added: "This was not a spontaneous outburst in response to an illegal threat [by the employer] but an ad hominem attack made in the context of a discussion [the employee] initiated with two supervisors. It was a response to an undisputedly legal letter issued in exercise of the company?s rights. In addition, [the employee] had not even read the letter in question, which further divorces his derogatory remark from the context of the ongoing labor dispute and thus makes the remark of a nature less eligible for protection."

In response to what it deemed "the inexplicably hyperbolic tenor of the dissent," the Court hastened to note that it wasn't holding that employee conduct is protected only at the physical site of labor negotiations. Rather, the decision was based on the facts of this case, involving an employee's profane remark about his employer, directed to his supervisors, during work hours and in the work place,in a conversation the employee himself initiated regarding an accurate and legal letter he had never read, in setting that was physically and temporally removed from the site of ongoing collective bargaining negotiations.

Full post as published by North Carolina Appellate Blog on March 14, 2009 (boomark / email).