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I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases

56 Pages Posted: 14 Oct 2015 Last revised: 22 Sep 2016

Christine Neylon O'Brien

Boston College - Carroll School of Management

Date Written: October 14, 2015

Abstract

Waitresses at Hooters got into a swearing match in front of customers over a mandatory bikini competition that was rumored to be rigged. An off duty barista at a New York Starbucks used profanity in a heated conversation with a manager that also took place in the presence of customers. Employees at a Manhattan catering service complained to the director of banquet services about the hostile, degrading, and disrespectful treatment they received from managers. Then, just prior to a National Labor Relations Board (NLRB) election, servers were repeatedly told by their manager to spread out and stop talking to each other. One server posted profane remarks about the manager on his Facebook page while he was on break, including a plea to vote for the union. In other instances, employees profanely commented on social media about their boss’ ineptitude at tax withholding; locked out bargaining unit members made vulgar comments and gestures to those who crossed the picket line; and unionized employees were told not to wear buttons in the presence of customers that contained language that bordered on profanity. All these examples refer to recent unfair labor practice cases that were brought to the NLRB by employees or their unions when employees were terminated for their use of profanity while engaged in concerted activity that was otherwise protected by Section 7 of the National Labor Relations Act (NLRA).

This article curates and analyzes ten recent cases involving employee communication laced with profanity. It informs managers and employees of the rules that the NLRB is currently following in this area, and the key factors that the Board weighs when considering whether conduct loses NLRA protection. The paper summarizes these top ten cases in an informative table, and then outlines why the NLRB or an administrative law judge determined the conduct was protected by the NLRA, and, if so, whether that protection was lost because of the egregiousness of the employee’s misconduct. In many of these cases, the Board found employer rules relating to profanity were overbroad because they unduly infringed upon employees’ Section 7 right to communicate about wages, hours, working conditions or matters of mutual aid and support. Cases involving employee dishonesty during an employer investigation into profane or offensive conduct and/or racial or sexual harassment are compared, and important distinctions are made.

Keywords: Section 7, National Labor Relations Act, protected concerted activity, social media, shoptalk, profanity, dishonesty, employer rules, reinstatement

JEL Classification: J50, J53, J58, J70, J78, K20, K30, K31, K40, O30

Suggested Citation

O'Brien, Christine Neylon, I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases (October 14, 2015). St. John's Law Review, Vol. 90, Issue 1, Summer 2016. Available at SSRN: https://ssrn.com/abstract=2674131

Christine Neylon O'Brien (Contact Author)

Boston College - Carroll School of Management ( email )

140 Commonwealth Avenue
Business Law Department
Chestnut Hill, MA 02467
United States
(617) 552-0413 (Phone)
(617) 552-0414 (Fax)

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