NLRA Update on Profane Outbursts and Offensive Statements

By Brenda Canale

*WARNING: This article contains harsh/profane language*

In September 2019, a majority of the National Labor Relations Board (the “Board”), over dissent from the Board’s sole democratic member, sought public comments to aid the Board in reconsidering the standard for determining whether “profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity,” should lose their NLRA Section 7 protection.  General Motors LLC, 368 NLRB No. 68 (Sept. 5, 2019).  The Board’s rationale for seeking comments was that its past “treatment of such language has been criticized as both morally unacceptable and inconsistent with other workplace laws by federal judges as well as within the Board.”  Id.

Section 7 of the National Labor Relations Act (the “Act” or “NLRA”) protects employees’ rights to complain about their terms and conditions of employment.  Generally, employees are granted some leeway with respect to outbursts that otherwise may be considered unprofessional or disrespectful because, as the Board explained, the language of the industrial workplace “is not the language of polite ‘society,’” and the protections afforded by Section 7 “would be meaningless were [the Board] not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.”  Plaza Auto Center, 360 NLRB 972, 978 (2014).

Thus, the Board and the courts have held that Section 7 permits a “freewheeling use of the written and spoken word . . . to encourage free debate on issues dividing labor and management.”  Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 272 (1974).  Indeed, employees have long been entitled to “use intemperate, abusive, or insulting language without fear of restraint or penalty if [they] believe[d] such rhetoric to be an effective means to make [their] point.”  Id. 

But, employers understand there should be a limit to how far employees can go in expressing themselves.  To draw this line, the Board currently considers the factors laid out in Atlantic Steel Co., 245 NLRB 814, 816 (1979): (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.  Through application of this test, the Board purportedly has sought to strike a balance between an employee’s right to engage in protected activity and an employer’s need to maintain order, discipline, and respect in the workplace.  

When “Free Speech” Includes Profane or Racially-Charged Language

Nonetheless, in a number of rulings over the past few years, the Obama-era Board found that certain extreme speech, deemed by employers to be patently offensive, retained its protected status.  For example, in Plaza Auto Center, 360 NLRB 972 (2014), the Board found an employee did not lose protection of the Act despite his outburst in a small, closed office during which the employee lost his temper and berated the owner of the car dealership at which he was employed, calling the owner a “fucking mother fucking,” a “fucking crook,” and “an asshole.”  The employee additionally told the owner he was stupid, nobody liked him, and everyone talked about him behind his back.  The employee ended his tirade by shoving his chair back and telling the owner if he was fired, the owner would regret it.  Similarly, in Pier Sixty, LLC, 362 NLRB 505 (2015), enforced 855 F.3d 115 (2d Cir. 2017), an employee who was upset about a supervisor’s “harsh tone” in speaking to employees was found not to lose the protection of the Act after he posted the following message on Facebook during an authorized work break, “[the supervisor] is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!”).  Likewise, in Cooper Tire, 363 NLRB No. 194 (2016), enforced 866 F.3d 885 (8th Cir. 2017) an employee was deemed not to have lost protection of the Act following his conduct on a picket line when he directed comments to African American replacement workers, yelling at them to “go back to Africa,” asking them if they brought enough KFC for everyone, and yelling that he smelled fried chicken and watermelon. 

Signaling the desire for change with its invitation, the Board majority appears troubled by the increasingly broad application of the Atlantic Steel factors to protect extremely offensive remarks.  The Board’s current approach may prevent employers from taking disciplinary action against employees for conduct that runs afoul of other state or federal laws prohibiting discrimination, including harassment based on race, sex, national origin, etc.

Invitation by Board Signals Potential Loss of Protection for Extreme Speech Extended by Obama-Era Board

Accordingly, the recent invitation to file briefs on this issue indicates a majority of the current Board is concerned that the balance between protected free speech and an employer’s right to maintain order and respect has tipped too far in favor of unchecked profanities, racial epithets, and other tirades.  

The invitation arises from a case in which an administrative law judge (“ALJ”) considered the suspension of an employee who directed a profane outburst at a supervisor during a discussion about overtime support for employees.  Specifically, while acting in his role as a union committeeperson, the employee was discussing overtime support for employees and told his supervisor that he, “did not give a fuck about [his] cross-training,” and the supervisor could, “shove it up [his] fucking ass.”  Applying the Atlantic Steel factors, the ALJ determined that the initial outburst was protected. Notably, the ALJ’s decision was based, in part, on a comparison of the “nature of the employee’s outburst” to that of the outburst at issue in Plaza Auto Center and determined the outburst in the General Motors case before her was “not as egregious” as the outburst deemed protected in Plaza Auto.  Nonetheless, the employee in General Motors engaged in two later altercations involving racially charged language and “playing loud music that contained profane and offensive, racially charged lyrics each time [the supervisor] entered or exited the room.”  Thus, the ALJ determined the latter two events resulted in a loss of protection under the Act.

In soliciting comments, the Board pointed to the aforementioned cases – Plaza Auto, Pier Sixty, and Cooper Tire – for comment and potential review.  Specifically, in reviewing the recent General Motors case, the Board cited the foregoing as cases that found “extremely profane or racially offensive language” did not lose the protection of Section 7 and were cases appropriate for review.

Areas of Commentary Sought by Board

Noting the “vehemence of judicial criticism” to the Board’s protection of extremely intemperate language by employees in a modern workplace, the Board asked interested parties to address any or all of five questions, paraphrased below:

1. When should profane language, or sexually or racially offensive speech, lose Section 7 protection?
2. When should the historical leeway for “ill feelings and strong responses” in industrial life give way to concerns for the lack of respect or offense to others on the basis of race or sex?
3. Should the Board continue to consider the realities of the workplace if profanity is commonplace or tolerated, and, relatedly, should the Board consider employer policies about profanity, bullying, or uncivil behavior in the context of Section 7 protection?
4. Should the Board overrule the line of authority that permits racially or sexually offensive language on the picket line, the historical bastion of profane language?
5. Should the Board consider the impact of antidiscrimination laws like Title VII in addressing protected Section 7 comments?

The answers to these questions are likely to shape the Board’s approach to “free speech” in the workplace for employers everywhere, union and non-union alike.  If the Board majority’s invitation is any indication, the pendulum may be swinging back toward empowering employers to exert greater control over such conduct.  Briefs by interested parties are due by November 4, 2019.  All details about submissions can be found on the Board’s website: https://www.nlrb.gov/cases-decisions/filing/invitations-file-briefs.