Cursing and Labor Law

Does labor law protect cussing at your bosses? It depends. And that’s the subject of this story about how Murray Energy, a horrible coal mining company, has fired a couple of workers for swearing at bosses in what the workers call a labor action. Now, for context, coal miners work blue. So do their bosses. This is not a conversation for those who find swearing a mortal sin. For example:

The coarse language, according to workers, extended all the way up to the company’s CEO — Mr. Bob Murray himself.

After Murray Energy took over the mine in late 2014, Bob Murray laid out his company’s rules in a meeting with workers. “These are my f—— rules, and if you don’t like it, there’s the f—— door,” he said, according to workers who testified before the NLRB.

So, in this atmosphere, this is what the workers did:

Richard Harrison and Jesse Stolzenfels used to work at the West Virginia mine. In late 2013, Murray Energy Corp., one of the nation’s largest coal companies, took the mine over from a previous owner. Shortly thereafter, the company tried to implement a controversial production-based bonus program.

Workers at the mine, who are represented by the United Mine Workers of America union, voted it down. But the company went ahead and adopted the plan anyway — in violation of its labor contract, according to the union. Murray Energy disagrees and maintains it followed the agreement.

Under the program, workers received bonuses based on the amount of coal they extracted. Many opposed it on safety grounds, including Stolzenfels and Harrison, according to court filings. The latter, in particular, had a history of a speaking out over safety. Meanwhile, the company told miners who disagreed with the plan that they could opt out of it by writing “void” on their checks and returning them.

In February 2015, Harrison and Stolzenfels took this route — but not before adding some profanity-laced flair. Harrison’s check, for $11.58, read, “Void Void Kiss My Ass Bob.” Stolzenfels’ check, for $3.22, read “Void Eat S— Bob.” The company responded by suspending both of them with “intent to discharge,” citing the employee handbook’s policy against profanity.

For this, they were suspended and canned. So is this a labor issue? What legal protections might these workers have?

“Certainly there are many people who would feel uncomfortable or disapprove of the [workers’] conduct,” said Angela Cornell, director of the labor law clinic at the Cornell University Law School. Ultimately, though, that’s not what matters.

The National Labor Relations Act, the federal bedrock of American labor law, gives workers the right to engage in “protected concerted activity” — to join together with one or more co-workers and speak out over pay and working conditions without facing retaliation. “In this context, workers have more rights than they would otherwise,” Cornell said.

For example, an angry worker who comes into the office and fires off an expletive at his or her boss is unlikely to be protected by the National Labor Relations Act. But if that worker drops an f-bomb or two while she’s complaining with co-workers about say, long hours or unsafe working conditions, her speech is more likely to be protected.

A separate federal law that covers mining safety offers comparable protections.

…

Cornell University’s Angela Cornell said the angrily worded missives from Harrison and Stolzenfels don’t appear to be isolated or individual incidents. Instead, they seem to be part of a broader workplace dispute — one that involved tense disagreements over workplace safety and the miners’ collective bargaining agreement.

Of course, workers can lose protections if their conduct is especially reckless or egregious — for example, by making a violent threat to a supervisor, or by trying to sabotage their employer’s business. Indeed, that’s precisely what Murray Energy is arguing.

The company maintains the voided checks did not amount to “protected concerted activity” in the first place. But even if they did, the company argued in its post-hearing brief, the miners forfeited their protections by engaging in “indefensible or abusive misconduct.”

The board’s general counsel disagrees. It also noted in its post-hearing brief that employees have used “far more biting and insulting profane language” toward management and not lost their protections. In previous cases, for instance, workers have legally confronted their supervisors with such epithets as “egotistical f—–,” “stupid f—— moron” and “f—— liar.”

Cynthia Estlund, a labor law professor at the New York University School of Law, said the labor board tends to give workers a fair amount of leeway when they express grievances. “It’s not that profanity is protected as such,” she said. But “from the beginning, the board has given employees some breathing room when they’re engaging in protected, concerted activity,” she added.

Right now, the two workers are being paid by their employer to stay at home.

Interesting case.