Can You Fire Someone For A Bad Attitude?

The NLRB says “Yes,” but…

In a recent case brought against Copper River, a restaurant in Boiling Springs, South Carolina, the Board held that an employer may fire an employee for a negative attitude.   The decision upheld an Administrative Law Judge’s ruling in the Unfair Labor Practice Charge brought by the union against Copper River for the discharge.

The restaurant had published specific guidelines in its Employee Handbook against displaying a negative attitude “that is disruptive to other staff or has a negative impact on guests.”  The questions raised in the case was whether that rule violated the employees’ rights under Section 7 of the National Labor Relations Act to for, join, or assist a labor organization or to seek collective bargaining, and whether the company’s motivation was specific to the rule violation and not a manifestation of an attempt to quash union activity.

The contention of Copper River wasthat one of the employees, a bartender, was counseled for poor service.  Upon returning from the meeting where she was given her counselling, the bartender proclaimed loudly to regular guests seated at the bar, “F*** Copper River!” and “…the managers are stupid.” (see a full discussion of the allegations here)

At the time of the events, Copper River was the target of an active union organizing effort.  The bartender filed a unfair labor practice charge alleging the firing was because of her participation in the organizing effort.  Judge Keltner W. Locke disagreed.  In a thorough, well-reasoned opinion, the judge determined three things:

1. The rule cited by the employer was sufficiently specific that it did not violate an employee’s Section 7 rights under the Act.
2. The behavior alleged was a violation of the rule
3. The action taken by Copper River had no connection to any union activity. (In fact, the testimony demonstrated that when the discharge occurred, the supervisor who discharged the bartender was not yet aware of any union activity.  Therefore, union animus could not have been a motivating factor in the discharge.)

Judge Locke said of the outburst by the employee, “This fit of pique wasn’t part of the service that guests would reasonably expect.”  The three NLRB members who reviewed the appeal of the judge’s decision agreed with Judge Locke’s description and his ruling.

What’s important to take away from this case is the importance of context when an employer acts in matters of discipline.  Conduct must be addressed in a specific manner that deals with the performance of duties or interaction with customers.  If the same expletives and disparagement were made by the bartender in the context of a picket line, or as part of a private conversation away from the restaurant’s customers, it is likely the Board would have determined the discharge unlawful.

This ruling is a glimmer of light in what has become a series of continuous anti-company decisions from the current incarnation of the NLRB.  Glimmers are easily darkened, so employers must be vigilant in their conduct.