The NLRB Could Learn From the Seventh Circuit

Frank Kollman
Frank Kollman

When my son was in high school, he was a star baseball player.  His senior year, one game away from the state championship, his team was disqualified over a technical rule violation that rational school officials wouldve overlooked.  When the disqualification was reported to the team by the principal, one of the students used a word that rhymes with duck.  No disciplinary action was taken.

The National Labor Relations Board, whose goal seems to be to punish employers for attempting, among other things, to enforce a code of civility in the workplace, frequently finds the use of vulgar and uncivil language permissible.  If the vulgar language emerges during a heated debate in the workplace concerning, for example, union organizing, the Board finds the bad language to be mere “animal exuberance.”  Taking disciplinary action against such an employee could be viewed as retaliation for prounion sentiments.

A federal appeals court, on the other hand, has recently looked at a case of uncivil language used by an employee at a sex discrimination mediation and reached a different result.  During the mediation, the employee got angry at the company’s settlement proposal and told the employer representative that he could kiss his butt.  Well, he didnt use “butt.”   Because the employee was at a mediation involving protected civil rights, he argued that his subsequent discharge for bad language was illegal retaliation.

The NLRB undoubtedly would have found a case of animal exuberance and forced the employer to return the employee to work with back pay.  The Court, however, ruled that there have to be limits on employee behavior, regardless of the setting.  Benes v. A.B. Data, Ltd., No. 13-1166 (7th Cir,  July 26, 2013).  The employee was fired because of his conduct at the mediation, not because of the mediation.  The Court, unlike the NLRB, recognized the difference.

Civility has its place in the workplace.  No matter how angry an employee gets, he should not be able to act inappropriately just because the subject matter of his outburst is protected activity.  While the NLRB does not have a history of listening to federal appeals courts, perhaps its new appointees will.  Or not.

As long as employers uniformly enforce civility policies, they should be allowed to do so.  Any argument against them, such as the NLRB’s that they “chill” employee rights, should be rejected.

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