The ObamaNation Files (Hooters Precedent)

The NLRB says you can tell your boss to @$%#! and still keep your job 

The Hooters restaurant chain isn’t the only place you can expect to hear more salty language in the years ahead. The National Labor Relations Board is increasingly siding with employees who insult their employers. 

Hooters drew some unwanted attention last spring when an NLRB administrative law judge ruled in favor of two employees who had been fired for cursing at a co-worker in front of restaurant guests. The two fired employees claimed that their co-worker had fixed a bikini contest in her favor. By allegedly arranging for her boyfriend and best friend to serve as judges, the woman was able to win the $300 first prize while earning the ire of two losing, er, contestants. 

Now comes a paper in which attorneys at the Holland & Knight law firm note a disturbing NLRB trend of condoning profanity and insubordination among U.S. workers. They’re warning employers about a pattern of board decisions “that attack sensible, long-standing management standards of conduct.” 

Authors Frederick Braid and Loren Forrest note a recent case in which the board sided with an employee of an auto dealership who cursed out the owner in a meeting to discuss compensation. The employee used words not fit for a family newspaper as he insulted the business owner, called him “stupid,” told him that nobody liked him and that he would regret it if he fired the abusive employee. After the dealership went ahead and fired the worker, the NLRB ruled that the business had violated the National Labor Relations Act. The NLRB said the employee’s behavior was neither “belligerent” nor “menacing.” 

In a case involving Starbucks Corp. , report Messrs. Braid and Forrest, “the Board again reinstated an employee” who engaged in profanity-laced tirades against his manager. “The first tirade occurred when the employee felt that his manager was slow to assist him during a busy day at Starbucks. Instead of thanking his manager for the requested assistance, which the manager provided, the employee said, ‘about damn time.'” The worker then used foul language and told his boss to “do everything your damn self.” 

The NLRB decided the employee’s behavior was simply a pretext used by Starbucks to fire him for pro-union views. In the Hooters case the NLRB also saw the foul language as simply a pretext to punish employees for exercising their right to engage in “protected concerted activity” regarding the alleged rigging of the bikini contest. At the Obama NLRB, pretty much any behavior can be justified as protected employee “activity.”