A bargaining unit member who made profane and derogatory remarks about the company’s vice president forfeits the protection of the National Labor Relations Act, the Fourth Circuit rules 2-1, overturning a National Labor Relations Board decision in the case.

During contract negotiations, the company vice president had sent a “legal and accurate” letter stating his viewpoint to the bargaining unit. One member took exception to the letter, and in the presence of supervisors called the vice president a “f__king idiot” and threatened not to show up for work because of “stress.” The member was eventually terminated for violating the company policy on making threatening, abusive, or harassing language.

Although an NLRB Administrative Law Judge ruled that the member had forfeited legal protection because of his profanity, the NLRB reversed, holding that the member was engaged in “concerted activity” and his discharge violated the law. The Fourth Circuit says that “[e]ven concerted actions that are assumed to be protected by the Act may forfeit such protection if they are ‘egregious or flagrant.’” The Court observes that he forfeited the protection of the Act because he engaged in "vulgar, profane, and obscene language directed at . . . [an] employer." “This was not a spontaneous outburst in response to an illegal threat but an ad hominem attack made in the context of a discussion [the member] initiated with two supervisors. It was a response to an undisputedly legal letter issued in exercise of the company’s rights. In addition, [the member] had not even read the letter in question, which further divorces his derogatory remark from the context of the ongoing labor dispute and thus makes the remark of a nature less eligible for protection,” the Court says. Media Operations Inc. v. NLRB