Use of F-Word: Protected or Not?

In Media General Operations, Inc. v. National Labor Relations Board, a collective bargaining agreement had expired. The employer and the union had begun the process of renegotiating the contract, and the negotiations were typically rancorous. A company vice president had sent a series of letters to employees describing the negotiations from the company’s perspective. These letters infuriated some employees, including Gregg McMillen, and they responded with their own letter. The vice president sent another letter responding to the employees’ letter and blaming the union for delaying the negotiating process.

After the vice president’s last letter but before McMillen had seen it, he reported to work and was asked by two supervisors if he had seen the vp’s most recent letter. He said he hadn’t, complained about the vp’s previous letters, and said: “I hope that f***ing idiot [vp] doesn’t send me another letter. I’m pretty stressed, and if there is another letter you might not see me. I might be out on stress.” McMillen later read the letter, failed to show up for his next shift, and was suspended.

Subsequently, McMillen was fired for the f-word statement he had made to the supervisors. It was determined that this statement violated a work rule that prevented “threatening, abusinve, or harassing language.” McMillen filed a grievance, claiming that he was engaged in protected concerted activity when he made the f-word statement and that his employer had violated the National Labor Relations Act by firing him.

An administrative law judge found that McMillen was engaged in concerted activity at the time of his statement but that his statement was so “profane, offensive and personally denigrating” as to be unprotected by the NLRA. McMillen appealed to the National Labor Relations Board, which reversed the ALJ’s ruling and found that McMillen’s statement was a part of concerted activity and protected by the NLRA. The employer appealed the case to the Fourth U.S. Circuit Court of Appeals.

The Fourth Circuit ruled that there was no question that McMillen was engaged in protected concerted activity under the NLRA. However, actions and statements that are arguably cloaked with NLRA protection can forfeit the protection if they are “egregious or flagrant.” While acknowledging that “in the heat of discussion” employees can lawfully use strong language that would be wholly inappropriate in other contexts where there is more time for relection, the Fourth Circuit determined that McMillen’s statement didn’t fall into that protected category.

McMillen wasn’t responding to illegal threats made by the employer and wasn’t in the middle of any kind of heated discussion. He was merely responding to a question about a letter he hadn’t even read. Instead of making an offensive outburst that was spontaneous or reflexive in nature, he made an unprotected insulting, obscene personal attack on the vice president.

One of the judges on the Fourth Circuit filed a vigorous dissent, and it’s fair to say that this case was a close one. It could have gone the other way in another court.

The point is that employees have the right to engage in protected concerted activity. Sometimes, when there are arguments or disputes or collective bargaining negotiations, emotions run high and tempers flare. Employees may say something spontaneously much worse that what McMillen said in this case. In these kinds of situations, is profanity protected? Sometimes, sometimes not. It depends on the facts and circumstances. And you don’t have to have a union for the principal of protected concerted activity to come into play. Any employee can engage in this activity.

So when there’s a dispute over employee wages and benefits, discipline, working conditions, and other “employee rights,” don’t haul off and fire an employee just because he used the f-word. You may be able to, but you need to get some legal advice first.