On September 5, 2019, over the dissent of one member, a majority of the National Labor Relations Board invited briefing 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,” should lose their Section 7 protection.
Claims that employees are entitled to use unfettered “free speech” in the workplace seem to have increased substantially in recent years. The bulwark protecting such speech has long been Section 7 of the National Labor Relations Act (NLRA), which gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” For decades, 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.” 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.”
But, of course, there must be a limit to such language. While Board and court decisions abound with employee statements to supervisors that would make even the least sensitive soul blush, other decisions have prohibited the most “opprobrious” conduct. To draw this line, the Board 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. The Board has tried to provide a balance between an employee’s right to engage in protected activity and an employer’s need to maintain order, discipline, and respect in its workplace.
The recent invitation to file briefs on this issue indicates a majority of the current Board is concerned that this balance 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. Applying the Atlantic Steel factors, the ALJ determined that the initial outburst was protected. The employee, however, 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.”
The Board appears troubled by the increasingly broad application of the Atlantic Steel factors to protect extremely offensive remarks. Specifically, the Board pointed to Plaza Auto Center, 360 NLRB 972 (2014); Pier Sixty, LLC, 362 NLRB 505 (2015), enforced 855 F.3d 115 (2d Cir. 2017), and Cooper Tire, 363 NLRB No. 194 (2016), enforced 866 F.3d 885 (8th Cir. 2017) as cases that found “extremely profane or racially offensive language” did not lose the protection of Section 7.
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:
- Broadly speaking, when should profane language, or sexually or racially offensive speech, lose Section 7 protection?
- 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?
- 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?
- 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?
- 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.