Misfire: Gun Range Instructor Wins Job Back After Using Profanity Toward Manager

Most people detest conflict in the workplace. And when it culminates or manifests via an employee outburst, it can drain morale and even lead to legal headaches. These situations often result in employee discipline, but a recent decision from a federal court affirming a National Labor Relations Board (NLRB) ruling illustrates landmines that employers — both union and non-union — need to be mindful of when these types of situations arise.

At issue in the case was a weapons instructor for a security company. He was responsible for training workers in the use of firearms among other devices, including at a firing range. The employee had raised various workplace safety complaints. In one instance, at the start of the COVID pandemic, he raised concerns regarding a prohibition on certain protective equipment.

Subsequently, the instructor — along with some co-workers — raised concerns about bullets ricocheting back toward shooters. According to the court opinion, some bullet fragments had actually struck some people as a result. When the ricochet problem continued, during a meeting with management, the employee had an outburst, raised his voice, and exclaimed that the company's response was "bullsh*t." The company terminated the worker based on this incident.

The employee filed a charge with the NLRB arguing that his workplace complaints constituted protected activity and that his discharge was the result of unlawful retaliation. The NLRB agreed with the worker and ordered him reinstated. The company appealed to the Forth Circuit Court of Appeals and the federal court affirmed the NLRB's order.

The court noted, "The actions taken by [employee] in response to his concerns about workplace safety demonstrate the importance of the NLRA's protection of those engaged in concerted activity." In other words, the court agreed the complaints were protected and that the termination amounted to unlawful retaliation. The employer raised some arguments about the instructor being a "manager" exempt from coverage under the National Labor Relation Act (NLRA), but the court rejected them.

This case serves as an important reminder to companies that if an employee has engaged in "protected activity" (i.e., concerted activity) under the NLRA, the NLRB (and, as demonstrated here, federal courts) will give employees some leeway in terms of outbursts — including the use of profane or even abusive language. Accordingly, employers should tread cautiously when evaluating how to handle such instances in the workplace, or they may find themselves stuck in a bunch of bull pucky.

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