Arbitrator Overturns Suspension Of Union Steward For Using Vulgar Language In Meeting With HR

On July 3, 2019, an arbitrator issued a decision in favor of UFCW, Local 1445 that Gorton's violated the parties' collective bargaining agreement and the National Labor Relations Act when it suspended a union steward for calling the HR manager a "f@#^ing piece of sh#t." Attorney Al Gordon O'Connell represented the Union in the case.

The situation arose when the union steward confronted the HR manager about whether he was going to discipline a member for an attendance issue when the Union believed another employee -- a favorite of the bosses -- had not been disciplined in the same way. The HR manager said the other employee had been given an attendance point, so the steward asked for a copy of the attendance and discipline record. When the HR manager refused, the meeting got heated, and the steward uttered some profanity toward the manager on the way out the door. The Company suspended the union steward for one day for his use of foul language and for purportedly violating the Company's harassment and workplace violence policies because the conversation had gotten heated.

Applying the four-part test from the NLRB's Atlantic Steel decision, the arbitrator held that the Company violated the law because (1) the outburst took place away from the production floor, (2) the subject matter of the conversation related to concerted activity, (3) the outburst was not so flagrant that it lost protection of the Act, and (4) the outburst itself was spurred by a violation of the NLRA -- i.e., the Company's failure to provide relevant information. The arbitrator also independently found that the conduct violated the parties' contract, which states that the Company will not discipline employees for their protected union activity. The arbitrator further found that the Company violated the employee's due process rights because the only thing it asked him during the investigation was whether he had used the vulgar language.

The case underscores the right of a union steward to stand up to management at appropriate times and in appropriate ways so long as the steward doesn't engage in flagrant misconduct and so long as the steward's actions are proportional to the Company's actions.