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Unfettered Free Speech or Profane Outbursts? NLRB Invites Input to Determine Scope of Section 7 Protection

By Erin Walsh and Jennifer Dunn - Franczek P.C.

October 11, 2019

The National Labor Relations Board (“Board”) is inviting input “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 the protection of Section 7 of the National Labor Relations Act (“Act”).

Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all of such activities.”

For decades the Board has considered the following factors, set forth in Atlantic Steel Co., 245 NLRB 814, 816 (1979), to balance an employee’s right to engage in protected activity and an employer’s need to maintain order, discipline, and respect in its workplace: (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.  

In its Notice and Invitation to File Briefs, the Board highlighted three decisions issued during the Obama-era that granted protection to represented employees who voiced “extremely profane or racially offensive language in the workplace.” Plaza Auto Center, 360 NLRB 972 (2014), Pier Sixty, LLC, 362 NLRB 505 (2015), and Cooper Tire, 363 NLRB No. 194 (2016).  Mindful of the criticism that the Board’s consideration of such language has received under the Atlantic Steel factors, the Board now seeks input on the following issues/questions:

1.  Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?
2.  To what extent should the “realities of industrial life” and the fact that labor disputes are among the types of disputes “most likely” to engender ill feelings and strong responses be applicable with respect to the use of profanity or language that is offensive to others on the basis of race or sex?
3.  Should the Board consider the norms of the workplace (i.e. whether profanity is commonplace and tolerated), and, if so, should it consider employer work rules prohibiting profanity, bullying or uncivil behavior?
4.  Should the Board adhere to, modify or abandon the standard the Board has applied to the extent that it permitted a finding that racially or sexually offensive language on a picket line did not lose the protection of the Act?
5.  What relevance should the Board accord to anti-discrimination laws like Title VII in determining whether an employee’s statements lose the protection of the Act, and how should the Board accommodate an employer’s duty to comply with such laws and its duty to protect employees in the exercise of their rights under the Act?

The answers to these questions will likely shape the Board’s approach to protected speech in the workplace and may shift the balance in favor of an employer’s right to maintain control over such speech in the workplace.

Briefs are due by November 4, 2019.

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