Ninth Circuit to NLRB: Reconsider Whether Employee’s Profanity-Laced Tirade was Protected Activity

The Ninth Circuit Court of Appeals has decided that an employee's string of "F-bombs" can be equivalent to a threat of actual violence.

In an exceedingly sensible decision, the Ninth Circuit Court of Appeals has remanded a case to the NLRB on appeal after the Board initially found that an employer committed an unfair labor practice by firing an employee after he engaged in a profanity-laced tirade during a meeting regarding pay policies. The NLRB determined that the employee's conduct at the meeting was protected concerted activity for which he should not have been terminated, because the "nature of the outburst" was not so severe as to remove his comments from protection by the Act. The Ninth Circuit overturned the conclusion and specifically rejected the NLRB's suggestion that only an actual threat of violence could support the decision to fire the employee. The Court remanded the case to the NLRB for reconsideration in light of its precedent, which recognizes "that an employee's offensive and personally denigrating remarks can result in loss of protection." Hinshaw & Culbertson will monitor the NLRB's decision in this case and will pass along any important updates.