It’s late afternoon. You call a three-month employee into a small conference room – along with two managers – for a talk about his attitude. He complains that he and his coworkers aren’t paid enough, don’t receive proper breaks, and the bathrooms are too far away; you say he can always work somewhere else. The employee shoots up, knocks his chair back, and launches into an F-bomb tirade fit for a Tarantino movie: he tells you that “you’re a “f****** crook,” a “f****** mother f******,”an “a******” that nobody likes and that if you fire him, you’ll “regret it.” You tell him he’s fired.

Now, the National Labor Relations Board orders you to rehire that raging potty mouth and pay him back wages. What just happened? “Protected activity” — that’s what. This is Plaza Auto Center, Inc., 360 NLRB No. 117 (May 28, 2014). There, the NLRB ruled that the employee had protection under the National Labor Relations Act (the “Act”) to discuss “terms and conditions” of employment (e.g., wages, breaks, and bathrooms) when he launched into his profane tirade. There was not enough evidence to show that his conduct was objectively “menacing, physically aggressive, or belligerent,” even though the managers testified that subjectively they feared for their safety. And because the incident occurred away from customers and coworkers, the NLRB concluded that there was minimal harm to the employer’s interest in maintaining discipline and order.

But what if the employee had engaged in his outburst in a more public place? Even then, the employer may have been unjustified to terminate under the NLRB’s decision in Starbucks Corp., 360 NLRB No. 134 (June 16, 2014). There, the NLRB ruled that a barista who told a store manager “you can go f*** yourself” was unlawfully terminated, reasoning that that the employer (who was facing a unionization drive) was unable to prove that it would have terminated the employee in the absence of the employee’s prior protected activity – which included attending unionization rallies and distributing pro-union flyers. Similarly, in Inova Health System, 360 NLRB No. 135 (June 30, 2014), the NLRB reasoned that an employer did not prove that it terminated an RN for cursing and telling sexually explicit stories in the operating room (while children were under anesthesia) where “use of profanity, and the telling of off-color jokes and stories were commonplace” and where the RN had recently drafted an email to management on behalf of four employees complaining about an evaluation process.

Such cases may tempt employers to launch into their own profane tirades at the NLRB. More realistically, what is an employer (union or non-union) to do when faced with a belligerent and out of control employee who starts hurling f-bombs at managers either during or after engaging in “protected activity”? Rather than accept that your workplace is now a dive bar / fight club, consider applying the following strategies:

  • Do Not “Provoke”: Avoid any temptation to spar (verbal or otherwise) with the employee; if you curse back or comment on anything that could be connected with protected activity (e.g., the employee’s “bad attitude”) the NLRB may dismiss the employee’s behavior as justified or just par for the course. For example, in Plaza Auto Center, the NLRB noted that the employer had “engaged in extremely provocative acts” by repeatedly telling the employee that he could quit if he did not like the employer’s policies.
  • Report To the Police (If Appropriate): If the employee’s profanity progresses into physical threats or otherwise generates a reasonable fear for safety, do not hesitate to contact the police and file a report. Beyond keeping the workforce safe, the report will serve as evidence that threatening behavior was taken seriously. In Plaza Auto Center, the NLRB noted that no police report was filed and that management had not immediately remove the employee from its property.
  • Incident Report: Before the sun sets, draft an incident report including the employee’s exact statement, making sure to note the tone and any details indicating the level of hostility (e.g., he had a balled fist and was screaming while staring me down). In Plaza Auto Center, the NLRB pointed out that the contemporaneous report of the incident did not characterize the employee’s conduct as menacing, physically aggressive or belligerent.
  • Final Report: There needs to be contemporaneous documentation of the decision by the decision-maker. Both this report and the incident reports will be trial exhibits so be precise. Do not rely on the employee’s use of profanity alone – rather, describe if the profanity was part of insubordination (e.g., refusing a direction) or a threat to do harm. Reference any prior incidents of violence, and note if the incident occurred within earshot and/or coworker or customers. Do not consider (or even mention) whether the employee has been or was engaged in any protected activity; that does not and should not matter unless, of course, you prefer to have the NLRB tell you to reinstate this employee with full backpay.