4th Circuit panel rules that cursing about supervisor not protected by NLRA

In a March 13, 2009 decision, the 4th Circuit Court of Appeals ruled that the National Labor Relations Act, 29 U.S.C. 151 et seq. ("NLRA"), did not protect an employee's use of profanity regarding his employer. http://pacer.ca4.uscourts.gov/opinion.pdf/081153.P.pdf


In that case, a pressman at The Tampa Tribune was terminated after he complained, using profanity, about a Tribune vice-president. The vice-president had sent a series of letters to the pressroom workers, describing the status of the collective bargaining negotiations from the management perspective. Not suprisingly, a number of pressmen objected to the letters.

The pressman at issue complained to two supervisors, during a shift, that he was "stressed out" about the latest letter, and that he hoped that "***** idiot doesn't send me another letter...." The conversation took place in an office away from the pressroom floor, and involved the employee and the two supervisors. The employee admitted that he hadn't read the letter, and did not dispute that the letter was legal and accurate.

He was later terminated for violation of Pressroom Office Rule 9, which prohibited, among other things, the use of "[t]hreatening, abusive, or harassing language...disorderly conduct...and all disturbances interfering with employees at work anywhere in the building."

The employee filed charges against the company, which were dismissed by the Administrative Law Judge (ALJ). On appeal, the National Labor Relations Board (NLRB) reversed the ruling regarding the termination, finding that the dismissal violated the NLRA.

The Tribune appealed, and the U.S. Court of Appeals for the Fourth Circuit found for the employer, ruling that there was no protection for the employee's profane remark regarding his employer, which was directed to his supervisors, during work hours, in the work place, in a conversation initiated by him, and regarding an accurate and legal letter he had never read. The Court also emphasized that the comment was both physically and temporally removed from the ongoing collective barganing negotiations.

Judge King filed a dissenting opinion.

The Zinser Law Firm represented Media General Operations Inc., d/b/a The Tampa Tribune.