As my family, friends, coworkers, Facebook contacts, or anyone who has ever talked to me for five minutes knows, I am a die-hard fan of the Pittsburgh Steelers. I attribute this largely to the happy circumstance of starting my professional career with the National Labor Relations Board in Pittsburgh in August 1974, just as the Steelers were beginning their incredible run of Super Bowl success that led to four championships in six years. As a result, it was mostly with my personal and rooting interests that I reviewed the stories regarding James Harrison’s interview in the Men’s Journal Magazine and his comments about NFL Commissioner Roger Goodell. All of the sports radio talk shows are filled with discussions regarding his remarks and the possibility that he will be suspended or fined as a result of them. While much of the discussion has focused on the narrow question as to whether the Commissioner or the Steelers have the authority to discipline Harrison for comments made while there is no collective bargaining agreement in place and the NFL has locked out the players, I want to focus on another issue that I have not seen discussed elsewhere.
Many people know that the National Labor Relations Act (“NLRA”) protects the rights of employees to engage in union activity, but it also protects employees if they engage in concerted activity involving matters relating to wages, hours, or other terms and conditions of employment. In a case decided in 1965, the 7th Circuit Court of Appeals noted that an employee’s right to engage in protected concerted activity permits “some leeway for impulsive behavior.” NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965). In that case, during a tense meeting with management regarding a grievance, an employee was terminated because he called an official a “horse’s ass.” The NLRB and the Court found that, given the context of the discussion that preceded it, the employee did not lose his protection because of the use of this obscenity.
In a much more recent case, Stanford Hotel, 344 NLRB 558 (2005), the NLRB found the discharge of an employee unlawful, despite the fact that he had loudly called the hotel’s general manager a “f —ing son-of-a-b—-.” During Legal Awareness Training that we regularly conduct for our clients, I use scenarios and exercises that include these types of fact patterns to illustrate the extent of NLRA protection.
In the Stanford case, the Board explained that the following factors will be examined to determine whether the conduct is sufficiently egregious to remove it from the protection of the Act:
1) The place of the discussion;
2) The subject matter of the discussion;
3) The nature of the employee’s outburst; and
4) Whether the outburst was in any way provoked by an employer’s unfair labor practice.
It is generally agreed that Harrison’s anger towards Commissioner Goodell is motivated by the decision of the Commissioner last year to levy substantial fines against players who hit other players in ways the Commissioner deemed inappropriate within the context of the football game. Harrison was certainly not alone in his displeasure with the Commissioner’s actions, and numerous players spoke up about the issue at the time and have continued to do so since. The issue of fines for alleged workplace misconduct is unquestionably a term or condition of employment. Harrison could also argue that his anger toward Commissioner Goodell, which comes across vividly in the excerpts of the article published so far, is motivated by the actions of the NFL in locking out its players. Clearly, however, the public nature of Harrison’s comments would weigh against a finding that they are legally protected.
It is not my intent here to resolve the issue regarding the protected nature of Harrison’s comments, but to simply raise an issue that has not been previously discussed. I would welcome any comments that others may have regarding the matter.
This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
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