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A Coca-Cola bottler unlawfully fired a union steward who used profanity in front of company executives and dozens of employees, an NLRB administrative law judge ruled Oct. 23 ( Heartland Coca Cola Bottling Co. , 2017 BL 379117, N.L.R.B. A.L.J., Case 14-CA-195320, 10/23/17 ).
The ALJ said the National Labor Relations Act law 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 the federal labor law.
Heartland Coca-Cola Bottling Co. argued Carl Jones used foul language to encourage employees to be insubordinate or uncooperative. ALJ Andrew Gollin, however, said Jones didn’t engage in excessive or violent conduct that would excuse Heartland’s firing him for making remarks that related to employees’ working conditions.
Heartland acquired a distribution center and warehouse in St. Charles, Mo., where Teamsters Union Local 688 represented employees. Heartland agreed to recognize the union and honor its collective bargaining agreement, but Gollin said the company’s first weeks of operating the facility were “chaotic.”
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 couldn’t force the employees to work.
At the union’s suggestion, Heartland asked for volunteers, but no one came forward.
The company called a meeting. Gollin wrote that a company vice president said, “Look guys, I get it. We’re all fucking tired,” but he pleaded with employees to come in on Friday. If the company could eliminate its backlog, the executive said, work schedules would return to normal.
Heartland invited Jones to address the group of about 50 employees and managers, and the union steward urged the employees to “step up” and report to work on Friday.
However, Jones added, “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.”
One executive thanked Jones for encouraging the employees to work, but several managers were disturbed by the union steward’s language, and the company fired him. Jones filed an unfair labor practice charge, which the ALJ sustained.
Gollin said the union steward was clearly talking about a work-related issue of interest to employees, and his discharge was illegal 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 ALJ said Heartland didn’t provoke the steward’s use of profanity, but his remarks were relevant to a discussion of work matters that the company convened in the workplace.
Noting that profanity was common in the Missouri warehouse, the ALJ found Jones was entitled to reinstatement and back pay. “Jones’ outburst was not so opprobrious [as] to cause him to lose the protection of the Act,” the ALJ concluded.
A company representative didn’t respond to a request for comment on the decision.
NLRB attorneys represented the board’s general counsel. Miller & Martin PLLC in Chattanooga, Tenn., represented Heartland Coca-Cola Bottling Co.
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Text of the ALJ decision is available at http://bloomberglaw.com/public/document/NLRB_ALJ_Decision_Heartland_Coca_Cola_Bottling_Company_LLC_No_CA1?doc_id=X14BBGOK0000N.
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