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The National Labor Relations Board’s invitation to parties to a recent case and others who are interested to weigh in on the issue of whether the National Labor Relations Act protects employees who use profanity at work in connection with union activity is likely to lead to the revision of Obama Administration-era policies, say attorneys who advise employers.
Experts say the NLRB is likely to redress policies that potentially prevented employers from disciplining workers who engaged in racist and other comments that violated Title VII of the Civil Rights Act of 1967.
The Sept. 5 “notice and invitation to file briefs” cites a September 2018 ruling by an NLRB administrative judge that held General Motors LLC 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.
General Motors has asked the board to overrule three previous NLRB rulings, 2014’s Plaza Auto, 2015’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 NLRB is asking General Motors and “interested amici” to file briefs on the issue.
The notice was issued by Republicans NLRB chairman John F. Ring, Marvin Kaplan and William J. Emanuel, with Democratic board member Lauren McFerran dissenting.
Under the Obama Administration, “the NLRB really went overboard in finding any type of complaint or criticism of an employer to be protected activity for which you cannot terminate an employee,” said Christopher V. Bacon, counsel, labor and employment, with Vinson & Elkins LLP in Houston, who litigates employment matters on behalf of private employers.
“There’s really a commonsense border” beyond which an employer violates not only company policy but potentially other laws, he said.
Kenneth J. Yerkes, a partner with Barnes & Thornburg LLP in Indianapolis, who chairs his firm’s labor and employment practice, said, “There was a lot of negative pushback from the employment community” as a result of the cases issued by the board during the Obama Administration.
Some of the comments in these cases “appeared to be outright insubordination, beyond just disrespectful, and as a result people were surprised that the board would protect that kind of explicit diatribe. And some of it was pretty explicit, using the “f” word. It was not just low-level profanity. It was personal, and it was direct,” said Mr. Yerkes.
“This is an area where, I think, employers aren’t asking to be given a gift. They just want to be able to maintain decorum in the workplace,” he said.
David P. Phippen, senior counsel with Constangy, Brooks, Smith & Prophete in Washington, D.C., said the board is “trying to rein in what the current board members see as overreach by the previously formulated board” that “really gave clearly at least a free shot” at challenging almost any kind of discipline for misbehavior in connection with union activity, including racial or obscene outbursts.
Some of these outbursts can become blatant insubordination, or sexual or racial harassment, that an employer must crack down on, he said. The NLRA “doesn’t say you’re allowed to swear at anybody.”
“This is another example of the change in views based upon the change in the board’s composition,” said Richard D. Glovsky, a partner with Locke Lord LLP in Boston, who co-chairs his firm’s labor and employment practice group.
“The Obama Administration was more inclined to protect union activity,” while the Trump Administration is “less union oriented,” he said.
Labor and employment attorney Lori Armstrong Halber, a partner with Reed Smith LLP in Philadelphia, said, “Currently we have a more business-friendly board, so you’ll probably see a bit of a shift where, I think, it’s possible to provide guidance that allows for a heated exchange, where someone may use profanity in connection with their concerted, protected activity, but also allows an employer to take action where that use of profanity is excessive and/or abusive.”
Mr. Yerkes said, however, “I think you’d have to accept the change in the board membership impacts this, but the cases were always suspect because of the nature of the language and the context” in which it was used.
“The agency is very wise to take a look” at the issue, said Steven M. Bernstein, a partner with Fisher Phillips LLP in Tampa, Florida, who represents employers and co-chairs the firm’s labor relations group.
It was “just too easy” for misconduct under the guise of profanity to be dismissed” with the excuse “they didn’t mean anything by it because they were just cursing,” he said. That is a misleading defense “because it ignores the context of the profanity, which is often accompanied by threats.”
“I think from the employer’s standpoint, it’s important that the standards be adjusted because of the possible interplay with Title VII,” Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia, said.
Under the current standard, an employer risks violating either the NLRA or Title VII if it 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 NLRA or do you risk taking a hit under Title VII? An employer should never be put into that situation.”
Michael L. Sullivan, a principal with Goldberg Kohn Ltd. in Chicago, who is chair of the firm’s labor and employment group and advises employers, pointed to a 2014 case, Starbucks Corp., where a worker, while engaged in union activity during off-duty hours, uttered profanities at a manager in the presence of customers and was later reinstated. “Employers are charged with making sure there is no hostile workplace,” he said.
Mr. Glovsky warned, however, that subsequent NLRB guidelines “may give individual plaintiffs who have claims of discrimination more evidence” to use against their employers.
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.