Don't Fire Workers For Concerted Activity

Conservatives I follow on Twitter have gotten really perturbed by a recent slate of National Labor Relations Board decisions. In particular, they seem scandalized by the fact that you can't automatically fire someone just because they said a cuss word. Even Radley "hate the cops, love the boss" Balko managed to get himself worked up about it a couple of weeks ago. Normally, I'd let this sort of thing pass, but with economic news being slow right now, I thought it might be helpful to explain why these decisions make perfect sense.

Complaining About Working Conditions Is Protected

In the first case management apologists are mad about, the worker in question, having had run-ins with management before over conditions, was made to come into a closed-off conference room with three bosses. He conveys in that room that the workers are being inadequately paid, not getting adequate breaks, and having bathroom break problems. The bosses escalate the matter by telling the worker that if he doesn't like it, he should quit and go somewhere else. The worker then responds by getting up and accusing the bosses of being "fucking crooks" and a variety of other bad names. The boss then fires the worker.

I know conservatives want the boss to be able to fire you for anything, but surely they at least realize that it is against the law to fire someone for complaining about working conditions on behalf of themselves and their coworkers. So the only issue is whether this particular method of complaining about working conditions is so bad that the usual labor protections shouldn't attach.

As it turns out, there is a test for this kind of thing. If the method of complaint is objectively "menacing, physically aggressive, or belligerent," then the protection against termination goes away. This is a high bar. Is calling the boss bad names for refusing to address complaints about working conditions any of those things? You might say so, if you have particular sensibilities. But, in context, probably not. In Real America where working class people exist, such foul language is extremely common. Terminations for foul language are regularly overturned (both in arbitration and unfair labor practice cases) as laughably contrived for precisely this reason.

Organizing and Supporting a Union Is Protected

In the other set of cases (I, II) the management apologists are mad about, the concern is that a Starbucks employee and a nurse also cussed during work and said other foul things. But in both cases, the issue is that the fired employees were known to be involved in worker/union organizing and there was good reason to believe that such involvement is what really animated the firings. It is, of course, illegal to fire someone for being involved in a union or other worker organizing, and so the terminations get undone.

In the Starbucks case, the discharge paperwork even specifies that the worker is not eligible for rehire because he "strongly support [sic] the IWW." At minimum, then, it's clear that the employer has multiple motives for terminating the employee, one of which is the impermissible motive of getting rid of a union-supporting employee. From there, the question is whether the employee would have been fired even if that motive weren't present. Pointing to four instances of equally bad or worse behavior by other employees (also involving those dreaded cuss words) that did not lead to a discharge, the panel wisely surmised that the worker probably would not have been fired for the conduct alone.

In the nurse case, it's the same basic story. The nurse in question had sent emails on behalf of the other workers complaining about conditions. There was email evidence that the boss was "furious" at this. Then the nurse got fired, allegedly for cussing and telling sexually explicit stories. But was this the real reason? It turns out that such behavior is extremely common in the area where it took place, so common in fact that there were pictures depicting cartoon penises and such up. Yet nobody else got fired for that kind of behavior, only the person pushing the boss over working conditions. As with Starbucks, the panel wisely surmised what was really going on: a termination for organizing and concerted activity masquerading as something else.

Conclusion

Among the classes where success is a primarily a function of cultural and social capital rather than merit, swearing at and around "superiors" may be unfathomable. But it's a daily occurrence in a lot of working class workplaces. As such, terminations for cussing are deeply suspicious and are often motivated by other things entirely. When those other things are shutting down employees involved in agitating about working conditions, then reversing the terminations is the entirely correct course of action. Given the frequency of foul language in many workplaces, any view otherwise basically gives bosses a blank check to sweep out anyone who tries to exercise their labor rights.

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