NLRB May Reconsider Whether Profane Outbursts Are Protected

 

Allen Smith, J.D. By Allen Smith, J.D. September 6, 2019
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​The National Labor Relations Board (NLRB) is having second thoughts about some of its earlier decisions that shocked the business community by finding certain profane and racially offensive outbursts are protected by the National Labor Relations Act (NLRA).

The board asked on Sept. 5 for briefs to help it reconsider the standards for determining whether a worker's profanity or slurs used during union or other concerted activity disqualify the employee from NLRA protection. The board noted that at least one court has said, "The NLRB is remarkably indifferent to the concerns and sensitivity [that] prompt many employers to adopt [civility rules]. Under both federal and state law, employers are subject to civil liability should they fail to maintain a workplace free of racial, sexual and other harassment."

In a recent case, an administrative law judge found that a worker was protected even though he said he did not "give a f--- about [his] cross-training" and that his supervisor could "shove it up [his] f------ a--." But two other instances of profanity were found to not be protected, as one included racially charged language and the other playing loud music that included profane and offensive, racially charged lyrics each time a manager entered or exited the workroom.

General Motors asked the NLRB to reverse the finding that the worker's profane language was protected and overrule prior decisions that permit profanity and racially offensive language in the workplace when there is union activity. Although the board did not promise to reverse or overrule, it did note judicial criticism of its prior decisions. For example, one appeals court judge observed, "Subjecting co-workers and others to abusive treatment that is targeted to their gender, race or ethnicity is not and should not be a natural byproduct of contentious labor disputes, and it certainly should not be accepted by an arm of the federal government."

Board member Lauren McFerran dissented from the notice and invitation to file briefs, emphasizing that "no court has rejected the board's legal approach" and saying that there should be rule-making if there is going to be an attempt to upend prior board precedent. She said that the NLRB's inquiry and call for briefs "paints a false picture of the board's jurisprudence in this area, implying that the board always finds employee outbursts protected."

We've gathered articles from SHRM Online on NLRB decisions and court rulings on profane and offensive outbursts during union activity in the workplace.

Profane Facebook Rant Was Deemed Protected Activity

The NLRB ruled in 2015 that a profanity-laced posting on Facebook about a manager and his family was protected activity and that the employer violated the law by discharging the worker who posted the message. Three key factors in the decision were that profanity was common on the worksite and usually went unpunished, the posting encouraged co-workers to vote for a union and the post was just two days before a union election.

(SHRM Online)

Appeals Court Affirmed NLRB Decision

In 2017, the 2nd U.S. Circuit Court of Appeals affirmed the NLRB ruling, although it said the statements were at the "outer-bounds of protected, union-related comments." The court highlighted the difference between conduct that occurs in the immediate presence of co-workers or customers and conduct that takes place via social media, even when the conduct is critical of the employer and is publicly available to customers and colleagues.

(SHRM Online)

Racist Remarks During Picketing Somehow Protected

Employers were aghast at a 2015 NLRB administrative law judge finding that a worker was engaged in protected, concerted activity when he made racist remarks on a picket line. An arbitrator had approved the discharge, finding that the use of racial slurs on the picket line increased the possibility that the constant verbal exchanges between the picketers and the replacement workers would escalate into violence. But the administrative law judge reversed, saying that the board "has long recognized a distinction between employee conduct in the workplace and employee conduct on the picket line."

(SHRM Online)

NLRB Ruling Upheld

In 2017, the 8th U.S. Circuit Court of Appeals upheld this NLRB ruling, stating that, "[i]mpulsive behavior on the picket line is to be expected, especially when directed against nonstriking employees or strike-breakers," as was the case in this decision. According to the court, unless the alleged misconduct "may reasonably tend to coerce or intimidate employees in the exercise of rights," the NLRA protects the behavior.

(SHRM Online)

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