NLRB Grants Protections for Union Organizers Using Profanity

May 1, 2023, 2:38 PM; Updated: May 1, 2023, 3:43 PM Parker Purifoy, reporter

• Return to pre-Trump standards for workplace profanity

• More difficult to punish workers for derogatory behavior

The National Labor Relations Board has reversed Trump-era precedent that made it easier for employers to discipline workers for racist, sexist, and other profane speech or conduct in the context of workplace activism and union-related activity.

The board on Monday overturned precedent set in the 2020 General Motors LLC decision, which widened its framework for determining whether a worker’s conduct is so egregious that they lose the protection of the National Labor Relations Act.

The board’s Democratic majority voted to allow for more legal protection for workers who have used derogatory language while speaking out against workplace conditions, returning to standards set in the 1979 Atlantic Steel Company case. NLRB Chair Lauren McFerran, Gwynne Wilcox, and David Prouty voted to affirm the ruling while the board’s lone Republican member Marvin Kaplan dissented.

“The General Motors decision broke sharply with judicially approved precedent and did not give adequate consideration to the importance of workers’ rights under the National Labor Relations Act,” McFerran said in an emailed statement. “To fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity—not as if it occurred in the ordinary workplace context.”

The ruling stems from a 2016 complaint filed against Lion Elastomers, a Texas-based rubber company. The board found in 2020—before the General Motors decision—that the company had violated federal labor law by firing a worker for his union activity. The NLRB relied on the precedent set in Atlantic Steel Company to determine that the worker’s conduct during a safety meeting wasn’t egregious enough to be stripped of NLRA protection.

The case was appealed to the US Court of Appeals for the Fifth Circuit, which then remanded the dispute back to the board for reconsideration under the General Motors precedent.

In General Motors, the board stripped away several different standards for deciding whether worker outbursts were inappropriate in different circumstances, including on the picket line, in discussions with management, and on social media. The Trump-era board said it wanted to simplify the analysis and adopt the Wright Line standard instead, which makes worker discipline legal if an employer can prove they would have been reprimanded without the union activity. The Trump board said in the General Motors ruling that it would stop the agency from providing cover for inappropriate behavior, calling it “long overdue.” But union advocates criticized the decision for reducing protections for workers.

The Lion Elastomers ruling restores the Atlantic Steel Company precedent as well as standards set in the Pier Sixty LLC decision pertaining to conduct on social media and in workplace discussions among coworkers, and in the Clear Pine Mouldings ruling governing conduct on picket lines.

The board ordered Lion Elastomers to to rehire the discharged worker and give him compensation for lost wages and benefits.

The case is Lion Elastomers , N.L.R.B., Case 16-CA-190681, 5/1/23 . (Updated to include a statement from NLRB Chair Lauren McFerran and more detail from the ruling.) To contact the reporter on this story: Parker Purifoy in Washington at ppurifoy@bloombergindustry.com To contact the editors responsible for this story: Genevieve Douglas at gdouglas@bloomberglaw.com; Laura D. Francis at lfrancis@bloomberglaw.com Previous Story