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NLRB seeks comment on whether profane language protected


The National Labor Relations Board is inviting businesses to weigh in on the issue of whether the National Labor Relations Act protects employees who use profanity at work.

An employer attorney says the invitation is certain to lead to changes in the current standard, and he hopes the board’s actions resolve a possible conflict now facing employers between enforcing the National Labor Relations Act and Title VII of the Civil Rights Act of 1964.

In its invitation to file briefs issued Thursday, with the NLRB’s sole Democrat dissenting, the board is asking the public to consider whether three previous NLRB decision, which extended protection to workers who were profane should be overruled.

The invitation cites a September 2018 ruling by an NLRB administrative judge that held General Motors LLC had violated the NLRA by suspending employee Charles Robinson because he had directed a profane outburst at a supervisor during a 2017 meeting in which Mr. Robinson was engaged in union activity.

The judge then found, however, that Mr. Robinson had lost the Act’s protection following two subsequent outbursts, which also led to suspensions.

In one instance, he directed racially charged language toward a manager, and in another he played loud music that contained profane and offensive, racially charged lyrics each time the manager entered or exited the room.

General Motors has asked the board to overrule three previous NRLB rulings, 2014’s Plaza Auto, 20015’s Pier Sixty and 2017’s Cooper Tire which “addressed circumstances in which extremely profane or racially offensive language was judged not to lose the protection of the Act,” according to the invitation.

“The board’s treatment of such language (as well as sexually offensive language) has been criticized as both morally unacceptable and inconsistent with other workplace laws by Federal judges as well as within the Board,” states the invitation.

“Mindful of this criticism, the board now invites the parties and interested amici to file briefs to aid the Board in reconsidering the standards for determining whether profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity, lose the employee who  utters them the protection of the Act.”

Questions that should be addressed include the circumstances under which profane, or sexually or racially offensive language loses the act’s protection and to what extent employees must be granted some leeway when engaged in activity under the NLRA’s Section 7, which gives employees the right to organize.

Also, should the board consider employer work rules, such as those that prohibit profanity, bullying or uncivil behavior; to what extent should the board continue to consider context, such as picket-line settings, in determining whether language loses the Act’s protection; and the relevance of antidiscrimination laws such as Title VII in determining whether an employee’s statements lose the Act’s protection.

The notice was issued by Republicans NLRB chairman John F. Ring, Marvin E. Kaplan and William J. Emanuel.

A strongly worded dissent by Democrat Lauren McFerran states the board majority has used the General Motors case “as a jumping-off point to address issues that clearly are not presented, including the different tests the board applies in determining whether employees lose the protection of the Act based on their speech while picketing and while online. At the very least, the majority should wait for cases to arise that actually represent the issues of interest, in real world factual contexts,” said Ms. McFerran.

Commenting on the invitation, Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia who represents employers, said there are “going to be some changes. How far the board is going to adjust the rules regarding profanity and other offensive statements of a racial or sexual nature, I don’t know, but the standards are going to be adjusted.”

“I think from the employer’s standpoint, it’s important that the standards be adjusted because of the possibly interplay with Title VII,” Mr. Meyer said.

Under the current standard, the employer risks violating either the NLRA or Title VII if he acts against a worker who uses discriminatory language in an NLRA context, he said.

“It puts the employer in a very precarious situation. Do you risk taking a hit under the NLRB or do you risk taking a hit under Title VII? An employer should never be put into that situation.”

“I think ultimately what the board need to do is to find a way to harmonize the NLRA with Title VII so that an employer can address this kind of behavior in the workplace” and prohibit sexual or racist comments “without fear of violating the NLRA,” Mr. Meyer said.



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