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Protected Swearing

In September 1996, Salvatore Yonta was reassigned from the day-shift to the night shift at Felix Industries, a highway and construction contractor. Under the company's union contract, Yonta was entitled to a pay increase – a shift differential – due to the transfer. However, when the extra money did not appear in his next paycheck, he telephoned his supervisor, Felix Petrillo, about the problem.

At the time of the telephone call, Felix Petrillo was 25 years old and the son of the President of Felix Industries; Yonta was 41.

Unfortunately, tensions flared during the telephone call. Petrillo told Yonta that he could not believe Yonta was making an issue of the pay differential, and that he (Petrillo) was "tired of carrying Yonta."

Yonta responded by telling Petrillo, "You're just a f***ing kid. I don't have to listen to a f***ing kid. Things were a lot different, before you were here." Petrillo then asked, "what did you call me?" and Yonta responded "F***king kid."

Yonta was fired later that day. Soon after, he filed a complaint with the National Labor Relations Board (NLRB).

The NLRB ruled in Yonta's favor. The NLRB concluded that Yonta had been illegally terminated because his telephone call was a "protected" activity, despite his profanity.

The NLRB considered several factors to determine whether Yonta's telephone call was "protected" by federal labor laws or whether he'd lost the "protection" due to his misconduct. First, the NLRB noted that the conversation was private and did not effect other employees or workplace discipline. Second, the conversation concerned Yonta's rights under the collective bargaining agreement. Third, the NLRB said Yonta's profanity was prompted by Petrillo's "overt hostility toward Yonta's protected conduct."

The NLRB pointed to Petrillo's statement about "carrying Yonta" during the telephone call, saying it was "not only a direct threat of discharge, but was personally denigrating to Yonta." Further, "Petrillo exacerbated the situation by immediately daring Yonta, in the heat of his anger, to repeat his profane comments."

Accordingly, even though Yonta's reply was "obscene, personally denigrating, and insubordinate," the NLRB ruled his statements were protected by, and thus his discharge violated, federal labor law.

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