NLRB Limits Employers' Authority to Discipline During Workplace Activism and Union-Related Activities

By Dennis E. Westlind - Bullard Law

May 1, 2023

On May 1, 2023, the National Labor Relations Board (NLRB) issued a decision in the case of Lion Elastomers that restores legal protection for workers who engage in profane speech or conduct in the context of workplace activism and union-related activity.

This decision reverses the Trump-era precedent set in the 2020 General Motors LLC case, which made it easier for employers to discipline workers for such speech or conduct. Under the restored Atlantic Steel Company precedent, workers who engage in derogatory language—including profanity and even racial slurs— while speaking out against workplace conditions are afforded greater legal protection under the National Labor Relations Act (NLRA).

The NLRB's decision in Lion Elastomers also restores the standards set in the Pier Sixty LLC decision for conduct on social media and in workplace discussions among coworkers, as well as the Clear Pine Mouldings ruling governing conduct on picket lines. In Pier Sixty LLC, the NLRB found that a company violated federal labor law when it terminated an employee who had posted a profanity-laden message about his supervisor on Facebook during a union election. The NLRB determined that the employee's conduct was not so egregious as to lose the protection of the NLRA, and that the company's decision to terminate the employee was therefore unlawful. In Clear Pine Mouldings, the NLRB addressed the issue of whether workers' picket-line conduct was protected under the NLRA. The NLRB held that the workers' use of profanity and insults during a picket did not constitute unprotected behavior as long as the language did not rise to the level of physical threats or other extreme conduct that would lose the protection of the NLRA.

Given the NLRB’s return to these precedents, employers should be cautious about disciplining or terminating employees who engage in profanity or sexist or racist slurs during workplace activism or union activity. The NLRB's decision in Lion Elastomers clarifies that such conduct is protected if it does not rise to the level of extreme behavior that would lose the protection of the NLRA. This decision also marks a return to the potential conflict between an employer’s duty to take prompt corrective action in response to racial or sexual harassment in the workplace and the NLRB’s insistence on protecting such misconduct when it arises in the union context.

If an employer is faced with a situation where an employee has used profane speech or conduct during workplace activism or union activity, the employer should consider the context and circumstances surrounding the conduct before taking any disciplinary action. Factors such as the severity of the language used, the location of the conduct, and the audience for the conduct may all be relevant in determining whether the conduct is protected under the NLRA. If that conduct also rises to the level of unlawful harassment, an employer may face the Hobson’s choice of letting the conduct slide and incurring Title VII and state law liability or responding to the conduct at the risk of drawing an unfair labor practice charge.

Employers should also ensure that their policies and practices align with the restored standards set forth in the Lion Elastomers ruling. This may include revising policies related to workplace discussions, social media use, and picket-line conduct to ensure that they are consistent with NLRA protections for workers.  Employers should also consider reviewing and, where appropriate, strengthening their anti-bullying and anti-harassment policies with examples of behavior that is strictly prohibited.

We also recommend that employers consult with legal counsel to ensure compliance with NLRA protections in these situations and to help navigate between the Scilla of the NLRA and the Charybdis of Title VII. Failing to do so may result in legal liability for violating employees' protected rights under federal labor law or federal and state anti-discrimination law.

This decision may have significant implications for your business and its relationship with its employees. If you have any questions or concerns about how this decision may affect your operations, please do not hesitate to contact us.

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