NLRB Gives Employers Greater Leeway to Discipline Employees for Offensive Speech

By Dennis E. Westlind and Ben O'Glasser - Bullard Law

July 22, 2020

On July 21, the National Labor Relations Board (NLRB) issued its decision in General Motors, giving employers more latitude to issue discipline for employees’ racist, sexist, threatening, or other offensive speech in the context of strikes and union organizing. In doing so, the Board adopted and applied to such speech an established legal standard, replacing several standards that had made it exceptionally difficult for employers to respond to offensive employee speech. Employers may now take steps to maintain a respectful, non-discriminatory and safe workplace, even in the context of strikes and other union activity. This decision brings federal labor law increasingly into alignment with social standards and movements condemning racist, sexist, and other forms of highly offensive speech.

Over the last 40 years, the NLRB has made it exceptionally difficult for an employer to lawfully discipline employees for offensive speech made in the context of strikes or union organizing. Under its increasingly stringent standards, the NLRB has upheld the rights of union employees to use racial slurs, sexist language, thinly veiled threats of violence, verbal abuse, and vulgar language in the workplace, when done so in the context of a strike or other union activity. (We won’t repeat any such statements here, but the NLRB describes several quite shocking examples in the General Motors opinion).

The NLRB’s policies granted remarkable protections to speech that would clearly violate almost every employer’s anti-harassment and anti-discrimination policies. The NLRB justified these decisions as necessary for the protection of employee rights given the “heated nature” of the picket line and other union activities. However, the NLRB’s decisions have seemed increasingly out of touch with a society and court system that has become less and less tolerant of racist, sexist, homophobic, and other offensive speech. Many social groups submitted amicus briefs to the NLRB encouraging a revision of the outdated standards.
 
Yesterday’s opinion discards those more stringent standards and applies the well-known and well-understood Wright Line standard. Under that standard, when a union alleges that discipline was unlawfully motivated by an employee’s protected union activity, the union must prove that the protected activity was a motivating factor in the discipline. Even if it does prove this, the discipline will still be held lawful if the employer demonstrates that it would have taken the same action in the absence of the employee’s union activity.

Employers may now discipline employees for offensive speech made in a union context, if they can show they would have taken the same action absent the union activity. For example, if an employer would normally discipline an employee for a racist or sexist comment on the production floor, it can also discipline that employee for making that racist or sexist comment on a picket line or during a union organizing drive. However, employers must ensure that it evenly applies such policies, as the NLRB will scrutinize whether the employer has allowed offensive comments to go unpunished (or less severely punished) outside of the union context.

The General Motors decision greatly enhances employers’ ability to promote diversity and respect in a unionized workplace. Mere involvement in protected activity will no longer grant employees immunity for offensive speech.