NLRB Poised To Trim Protections for Offensive Comments
Under what circumstances — if any — does the National Labor Relations Act (“NLRA”) require an employer to tolerate an employee’s use of sexually or racially offensive language in the workplace, notwithstanding the employer’s anti-harassment policies and employment discrimination laws?
The National Labor Relations Board (the “Board” or “NLRB”) has often grappled with this issue over the years. It is now poised to give employers a definitive framework for evaluating this dilemma, through two cases currently pending before the Board, General Motors LLC, Case No. 14–CA–197985 and 14-CA-208242, and Constellium Rolled Products, Case No. 09-CA-116410.
Under Section 7 of the NLRA, when employees act collectively for the purpose of bettering their terms and conditions of employment, such actions generally constitute protected “concerted activity” for which employees may not be penalized. This protection applies equally to unionized and non-unionized employees.
Significantly, even actions taken by a single employee may be deemed protected concerted activity if the employee undertakes them on behalf of a group of employees, or with the object of initiating or preparing for group action.
Employees engaging in concerted activity regarding their terms and conditions of employment, however, sometimes resort to insults, profanity, or other aggressive speech in support of their cause. This can take forms such as talking back to a supervisor, hurling epithets at employees who cross a picket line, or posting a rant about the employer on social media. While such actions are generally protected under the NLRA, the Board has long held that in some circumstances, an employee’s statements may be so abusive or otherwise inappropriate as to forfeit their protected status.
Traditionally, the Board has applied the four-factor Atlantic Steel test to determine whether an employee’s workplace outburst is so egregious that it loses the protection of the NLRA. This standard considers: (1) the location of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practices. Atlantic Steel, 245 NLRB 814, 816 (1979).
This issue also arises in off-duty employee conduct situations. With regard to online conduct (like Facebook posts), the Board has applied a more relaxed test that examines the overall facts and circumstances. Pier Sixty, LLC, 362 NLRB 505 (2015). For picket line conduct, the Board assesses whether the conduct would intimidate a reasonable person in his or her exercise of Section 7 rights. Clear Pine Mouldings, 268 NLRB 1044 (1984).
Prior Board Decisions
In some cases, much to employers’ frustration, the Board has applied the above tests to find that employees did not lose the protection of the NLRA despite using language that was highly profane or grossly racially or sexually offensive.
For instance, in Cooper Tire, 363 NLRB No. 194 (2016), enf’d, 866 F.3d 885 (8th Cir. 2017), the Board found an employee protesting on a picket line did not forfeit the protection of the NLRA when he asked African-American strike replacement workers whether they had brought “enough KFC for everybody” and commented that he smelled “fried chicken and watermelon.”
Similarly, in Airo Die Casting, Inc., 347 NLRB 810 (2006), the Board held that a striking worker’s hurling a racial epithet and accompanying obscenity at an African-American security guard did not lose the protection of the NLRA.
These and other Board decisions force a difficult choice upon employers contemplating disciplinary action for employees who use racially or sexually profane language in the course of concerted activity: discipline the employee, potentially in violation of the NLRA, or tolerate the conduct, and fail to meet their legal obligations to maintain a harassment-free workplace.
Recognizing this Catch-22, a few years ago the NLRB and the federal Equal Employment Opportunity Commission (“EEOC”) began developing joint guidance for employers on the interaction and overlap between Title VII and the NLRA. Unfortunately, that initiative was eventually shelved, and employers have continued to remain in the dark on how to balance their obligations to maintain a harassment-free workforce with employees’ rights to engage in protected concerted activity.
The General Motors and Constellium Rolled Products Cases
In General Motors LLC, an employer suspended an employee/union committeeperson for telling his supervisor, during an employee meeting, that he did not “give a f***” about the supervisor’s plans for employee training, and that the supervisor could “shove it up [his] f***ing a**.” Later, the employee made racially offensive comments to the same supervisor, and played loud music with profane and racially charged lyrics each time the supervisor entered or exited the room.
An Administrative Law Judge (“ALJ”) found that while the employee’s vulgarity in the meeting did not render his conduct unprotected, his later, racially charged comments did. Both the employer and the NLRB General Counsel (“GC”) sought full Board review of the ALJ’s conclusions regarding the protected nature of the employee’s profane and racially tinged remarks.
In September 2019, the Board issued a decision and public notice in the General Motors case inviting amicus briefs concerning when profane language or sexually or racially offensive speech loses the protection of the NLRA.
Numerous amicus briefs were filed by employers, law firms, labor organizations, and special interest groups, as well as the EEOC and the NLRB GC.
In its amicus brief, the EEOC argued that there is no exception to Title VII for blue-collar or otherwise “relaxed” workplaces, nor is “leeway granted employees who make racist or sexist comments because they may have heated feelings about workplace matters.”
Likewise, the GC maintained that there is “no reason or excuse” for a labor dispute to occasion discriminatory conduct. The GC argued that even if a single harassing statement would not typically subject an employer to liability under anti-harassment laws, employers still must be permitted to issue discipline for conduct that “an affected employee would reasonably view as contributing to a hostile work environment under Title VII or as creating a situation that could reasonably lead to violence.”
More generally, the GC asked that the Board give increased weight to the profane nature of an outburst while considering the particular workplace’s norms.
The D.C. Circuit Ups The Ante in Constellium Rolled Products
In December 2019 — one month after the deadline for submitting amicus briefs in General Motors — the U.S. Court of Appeals for the District of Columbia Circuit issued a decision highlighting the need for the Board to devise a clearer framework for evaluating harassing and profane conduct.
In Constellium Rolled Products, an employee was terminated for engaging in insulting and harassing conduct after he protested his employer’s new overtime sign-up system by writing “whore board” at the top of the overtime sign-up sheets. The Board held that the termination violated the NLRA because the employee’s conduct constituted protected concerted activity, and that his use of the offensive term “whore board” was not so egregious as to lose the protection of NLRA. 366 NLRB No. 131 (July 24, 2018).
In its appeal to the D.C. Circuit, the employer argued that the NLRB’s decision failed to adequately consider that tolerating the employee’s conduct would conflict with the employer’s obligations under federal and state anti-discrimination laws to maintain a harassment-free workplace. The Board challenged this point on procedural grounds, arguing that the employer had not properly raised the issue earlier in the litigation.
The D.C. Circuit disagreed with the Board, writing that the employer had properly raised this issue, and that the Board had “not so much as advert[ed] to the potential conflict it was arguably creating between the NLRA and state and federal equal employment opportunity laws.” Constellium Rolled Prod. Ravenswood, LLC v. Nat’l Labor Relations Bd., 945 F.3d 546 (D.C. Cir. 2019). The court therefore remanded the decision to the Board for further consideration.
Takeaways for Employers
Given the Board’s numerous decisions over the past three years reversing employee-protective holdings by the Board under the Obama administration, many practitioners expect the Board’s forthcoming decision in General Motors to adopt a more employer-friendly approach to evaluating the protected nature of offensive employee outbursts.
While we await the Board’s decision, employers would do well to remember that unlike the NLRA (under which remedies are generally limited to make-whole or injunctive forms of relief), violations of Title VII or state counterparts can result in substantial compensatory and punitive damages, attorneys’ fees, and costs, on top of back pay, front pay, and/or an injunction.
Thus, in many cases, the consequences of tolerating sexually or racially offensive remarks or similar conduct may be far more costly than those imposed by the Board when an employer is found to have unlawfully disciplined an employee for engaging in protected concerted activity.
That said, pending the outcome of General Motors, employers should continue to use caution and employ a case-by-case approach when disciplining employees for profane or offensive conduct that includes protected concerted activity.
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A previous version of this article appeared in New England In-House (NEIH). The Firm is grateful to NEIH for its support.