b'PAGE 30 / NATIONAL CLOTHESLINE / DECEMBER, 2019K EEP I T L EGAL BY F RANK K OLLMANShould rude behavior be tolerated?magine an employee telling engagedinprotectedcon- whether disrespectful com- The third item, the nature of a bright line standard that per-I you in vulgar language to certedactivities.Firingtwo ments toward the boss negates the outburst, is even more sub- mitsemployerstodisciplineleave him alone. Also imag- employeeswhocomplained theemployeesprotected jective. In the case before the employees for outbursts thatine an employee accusing you that the plant was too hot, for rights. NLRB, the comment was con- wouldnotbetoleratedof being racist or sexist. example, would probably be The board looks at four fac- sideredlukewarmversusa whethertheyinvolvedpro-Now imagine that you maynot be able to fire those em-ployees under the National La- You have a reasonable expectation of civil, respectfulbor Relations Act.Recently, the National Labor and polite conduct, but firing an employee for rudeRelations Board found that anemployees rudeness and dis- comments needs to be carefully evaluatedrespect toward his supervisor(in this case the president ofthe company) did not neces- an unfair labor practice under tors: where the discussion took profanity-lacedtiradewith tectedsubjectsornot.Ifthesarilywarrantterminationif the National Labor Relations place; what the conversation threats of violence. outburstviolatestheCiviltheemployeeisexercising Act. was about; how bad the em- Thelastitemdealswith RightsAct,itshouldextin-statutory rights. The employee, A rule prohibiting non-su- ployeesoutburstwas;and whether the employee was re- guishanyprotectionspro-afterasomewhatheatedex- pervisory employees from dis- whether the outburst was pro- actingtotheemployers vided by the NLRA. changewiththeemployer, cussing their wages (and con- voked by the employers un- properbehaviororconduct Whendealingwithyoursaid: I dont think that you re- sequentlydiscipliningthem fair labor practice.that was unlawful. employees, you have a reason-allycareaboutourjobsor for discussing wages) would Withrespecttothesefac- The EEOC takes a slightly ableexpectationofcivil,re-whatwearedoingbecause be an unfair labor practice, as tors, a discussion in private be- different approach. The EEOC spectful,andpoliteconduct.you are not allowing us to do would the discipline.tweentheemployerandthe says that the NLRB should per- Most employers expect a littleour jobs. Theserulesapplyto employee is better for the em- mitemployerstodiscipline pushbackfromemployeesThe employee was fired. nonunion and unionized com- ployeethanmakingdisre- employeesforengagingin from time to time, including aManyemployersarenot panies alike. In fact, employees spectful statements in front of racialorsexualmisconduct little profanity.aware that the National Labor seeking to unionize a company other employees. Public acts of whilealsoengaginginpro- Firinganemployee,how-Relations Act protects employ- are engaged in protected con- disrespect are less protected. tectedactivityunderthe ever, for rude and disrespectfulees engaged in what is called certed activities. As to the subject matter of NLRA. commentsneedstobecare-concerted activities. Becausediscussionsof the conversation, if the discus- To summarize the EEOCs fully evaluated to make sureAny time two or more em- wages,hours,andworking sionwasoverseriouswork- position, the commission be- thefourelementsaboveareployees act together with re- conditions with employees can placeconcerns,theoutburst lieves that employers not only considered.Evenwithoutaspecttowages,hours,and frequently get heated, the Na- has more protection. A discus- should but must take correc- union, the National Labor Re-working conditions, there is a tional Labor Relations Board sion about parking spaces or tive action in light of employee lations Board protects employ-strong argument that they are has adopted rules to determine uniform colors might not. activitiesthatinvolveracial eeswhoseexuberanceisex-and sexual harassment. plained by the exercise of theirEven if the employee is en- rights. In any event, the actualgaginginprotectedactivity comments should be evaluatedundertheNLRA,theEEOC to determine if they are clearlysays the employer is obligated disrespectfulandrude,noto do something to remedy matter what the subject.theTitleVIIviolations,and Frank Kollman is a partner in thethat do something might in- law firm of Kollman & Saucier,clude discipline. It is not clear PA, in Baltimore, MD. He can behow the NLRB will balance be- reached by phone at (410) 727-havior that is protected while 4300 or fax (410) 727-4391. Hisat the same time illegal under firms web site can be found atanother federal statute. www.kollmanlaw.com. It has ar-The NLRB is currently re- ticles, sample policies, news andviewing its standards. It is my otherinformationonem-hope that the NLRB will adopt ployee/employer relations.THE CLEANERS OF KELLER in Keller, TX, purchased aUnion HL-860 with solvent heating through Gulf States Laun-dry Machinery. John FitzGibbon, the owner, is pictured withTo learn more, see the Index of Advertisers on page 38 or visit www.natclo.com/ads Matt A. Lipman of Union.'