By Matthew Bultman
Law360, New York (August 1, 2016, 5:33 PM ET) — The U.S. Postal Service engaged in an unfair labor practice when it issued a written warning to a worker and union steward who berated a supervisor during a 2012 meeting over employee grievances, the National Labor Relations Board said Friday.
Partially overturning an administrative law judge’s decision, the NLRB majority said Cheryl Walton didn’t lose protection under the National Labor Relations Act during the meeting, despite acting in a way that was “loud, profane, disrespectful and obnoxious.”
Turning to the third factor, the nature of the outburst, there is no doubt that Walton became confrontational in the course of advocating the cause of a fellow employee and then protesting Babb’s efforts to end the discussion. But “[t]he Board has repeatedly held that strong, profane, and foul language, or what is normally considered discourteous conduct, while engaged in protected activity, does not justify disciplining an employee acting in a representative capacity.” [Hawaii Tribune-Herald, 356 NLRB 661, 680 (2011), enfd. 677 F.3d 1241 (D.C. Cir. 2012) (citing cases); accord Noble Metal Processing, Inc., 346 NLRB 795, 799 (2006).]
Indeed, “a certain amount of salty language and defiance” is to be expected and “must be tolerated” in disputes over employees’ terms and conditions of employment. [Severance Tool Industries, 301 NLRB 1166, 1170 (1991), enfd. mem. 953 F.2d 1384 (6th Cir. 1992).]
Applying these principles, we find that Walton, at the August 9 meeting, did not go beyond the measure of coarse language and defiance one might expect in a heated dispute over a grievance.