NLRB Ends Protection For Obscene, Racist, And Sexually Harassing Speech

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

At a time when abusive speech is becoming more and more a part of public discourse, the National Labor Relations Board (“NLRB”)  has given greater power to employers to discipline employees for profanity or sexually or racially offensive speech.

The National Labor Relations Act (“NLRA”) protects concerted activities for the mutual aid or protection of employees. Concerted activities are not limited to union activities. Such activities can include complaints about working conditions, pay and benefits by non-union employees.

As noted in a January 2018 post on this blog, the NLRB long held that concerted activities can be legally protected even if laced with abusive or offensive language. The NLRB assumed abusive conduct and protected activity were analytically inseparable. For decades, the NLRB adhered to the position that the discipline or discharge of an employee for abusive conduct during concerted activities was an unfair labor practice in violation of the NLRA.

This position led to decisions which had many employers scratching their heads. In recent years, the NLRB overturned discipline against employees who had:

  1. Called a business owner a “f***ing mother f***ing”, a “f***ing crook”, and an a**hole” during a meeting in which the employee also raised concerted complaints about compensation (Plaza Auto Center, 360 NLRB 972 (2014));
  2. Posted the following commentary on Facebook regarding a supervisor during a union campaign: “Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!! Vote YES for the UNION” (Pier Sixty, LLC, 362 NLRB 505 (2015));
  3. While picketing, shouted to black replacement workers: “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon” (Cooper Tire & Rubber Co., 363 NLRB No. 194 (2016)).

In some instances, employers were found to have violated the NLRA simply for taking affirmative steps to combat a hostile work environment in accordance with anti-discrimination laws. Such was the case for an employer who terminated an employee who wrote “whore board” on the top of overtime signup sheets on a bulletin board. The employer argued, to no avail, it had a duty under anti-discrimination laws to take prompt remedial action against the offending employee. Constellium Rolled Products Ravenswood, LLC, 366 NLRB No. 131 (2018). Only by appealing to the U.S. Court of Appeals for the District of Columbia did the employer obtain a favorable ruling denying enforcement of the NLRB decision.

In a July 21, 2020 decision, the NLRB finally acknowledged that, by penalizing employers who decline to tolerate abusive and potentially illegal conduct in the workplace, the Board had “strayed from its statutory mission.” (General Motors, LLC, 369 NLRB No. 127 (2020)).  The Board held:

“Abusive speech and conduct (e.g., profane ad hominem attack or racial slur) is not protected by the [NLRA] and is differentiable from speech or conduct that is protected by [the Act] (e.g., articulating a concerted grievance or patrolling a picket line). Accordingly, if the General Counsel fails to show that protected speech or conduct was a motivating factor in an employer’s decision to impose discipline, or if the General Counsel makes the showing but the employer shows that it would have issued the same discipline for the unprotected, abusive speech or conduct even in the absence of [concerted] activity, the employer appears to us to be well within its rights reserved by Congress.”

This decision is welcome news for employers. No employer should be expected to tolerate abusive behavior by its employees. In recent years, moreover, anti-harassment laws have become more demanding in the expectations placed on employers to eliminate and redress harassment. The NLRA should never stand in the way of compliance with these laws.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

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