What is the proper response from the company when two employees express their anger at the CEO when they receive bonus checks by returning the checks, voiding them, and writing, “kiss my a– Bob,” and “eat sh– Bob” on the checks? According to the National Labor Relations Board, firing them is improper.
After returning the checks, the employees posted pictures of the checks on a private Facebook page. Other employees followed suit by also voiding their checks and posting them to the Facebook page. However, only the first two employees wrote profanities on their checks. Not very long following this incident, both employees were fired. They filed grievances shortly thereafter with the NLRB.
The NLRB reinstated the employment of the two West Virginia coal miners. After their union voted against bonuses based on productivity, the coal mine management decided to implement the bonus program anyway. Apparently the two miners were unimpressed with the company’s generosity.
The NLRB judge who presided over the case found that the two miners had been wrongly discharged and that the words on the checks, “while profane and offensive, were nevertheless expressions of protest and outrage over what those employees viewed as implementation of a plan that would adversely affect their safety conditions and which constituted what the employees believed was a surprising violation of the terms of the collective-bargaining agreement.”
Essentially, the judge concluded that the miners’ off-color language was protected under the National Labor Relations Act. He further commented that they had not threatened violence and posed no danger to the mine’s management. Also, it was noted that profanity was common in their workplace and although there was a written policy in the mine’s handbook that prohibited all profane language directed toward others, it failed to clearly define what exactly constitutes “profane”. Furthermore, there was a culture of profanity that was tolerated and engaged in by employees all the way up to and including the CEO.
Lastly, the judge pointed out that the National Labor Relations Act gives workers the right to engage in “protected concerted activity” — to join together with one or more co-workers and speak out over pay and working conditions without facing retaliation. The judge reasoned that the mine management violated the Act when it discharged the employees for engaging in protected concerted activity.
It should be noted that while this case involved a union, the National Labor Relations Act applies to all employers – not just those in a union situation. Before disciplining a worker for protesting a company policy, even if using questionable or profane language directed at a company policy or practice or even the CEO, talk to your employment lawyer to determine whether or not that employee’s actions and language constitute protected concerted activity. Otherwise, you may be battling an unfair labor practices claim.