Sign In
  • June 30, 2023

    NLRB Provides Employees Extra Leeway to Use Offensive Language

    The National Labor Relations Board has issued a decision making it more difficult for employers to discipline employees for outbursts and similar misconduct while employees are engaged in protected concerted activity under Section 7 of the National Labor Relations Act.

    Quinn A. Stigers, Adam Doerr, Terry Potter

    This article was originally published in Husch Blackwell's Labor Relations Law Insider blog and is published here with permission.

    On May 1, 2023, the National Labor Relations Board (“NLRB”) issued its decision in Lion Elastomers and United Steelworkers, making it more difficult for employers to discipline employees for outbursts and similar misconduct while employees are engaged in protected concerted activity under Section 7 of the National Labor Relations Act (the “Act”).

    The NLRB in Lion Elastomers overruled the Trump-era General Motors decision, which had overruled Atlantic Steel, 245 NLRB 814 (1979), Clear Pine Mouldings, 268 NLRB 1044 (1984), and Pier Sixty, 362 NLRB 505 (2015). In those three cases, the NLRB found certain forms of otherwise-inappropriate conduct, such as outbursts towards management (Atlantic Steel), inappropriate statements made on the picket line (Clear Pine), and social media posts (Pier Sixty), protected by the Act when engaging in protected concerted activity. Extra leeway is appropriate in that context, according to the NLRB, because of the tension that often accompanies union organizing campaigns.

    Quinn Stigers headshot Quinn Stigers, Marquette 2022, is a labor and employment associate in Husch Blackwell’s Milwaukee office, where she counsels employers on day-to-day employment matters.

    Adam Doerr headshot Adam Doerr, Saint Louis University, is a labor and employment attorney with Husch Blackwell LLP in St. Louis, Missouri.

    Terry Potter headshot Terry Potter, University of Missouri, is senior counsel with Husch Blackwell LLP in its St. Louis office, where his practice focuses on labor and management relations.

    The Trump Administration’s NLRB accused the Board’s Atlantic Steel, Clear Pine, and Pier Sixty cases of permitting “appallingly abusive ... misconduct, including racially and sexually offensive language.”

    For example, in 2016, the NLRB ruled that a picketing employee was wrongfully discharged in violation of the Act, even though the picketer had shouted racist and profane comments towards strike replacement workers, ruling that “conduct on the picket line” is protected, even if “threatening” or “profane” so long as “unaccompanied by an overt or indirect threat” of violence. Cooper Tire & Rubber Co., 363 NLRB 1952, 1958 (2016). Since the “offensive and racist” comments at issue in Cooper Tire did not contain “overt or implied threats” or raise a “reasonable likelihood of imminent physical confrontation,” the employee did not lose protection of the Act, and his discharge was found unlawful. Id. at 1958-59.

    Following Cooper Tire, employers found themselves in the uncomfortable position of having to balance their obligations under Title VII (and state-law counterparts) to maintain a workplace free from discrimination and harassment, against the NLRB’s position that racially-charged and hate-filled speech is, at least sometimes, protected by the Act.

    Similarly, in Pier Sixty, the Board found social media messages filled with hate-filled profanity towards a supervisor (and his family) during a union organizing campaign did not lose protection of the Act.

    Instead, the Trump NLRB ruled that the commonly-used Wright Line test – a burden-shifting standard that ultimately asks whether an employer would have made the same business decision, or taken the same employment action, even absent any protected concerted activity – should also apply to employee misconduct in the midst of protected concerted activity, including organizing activity and picketing, including related social media postings.

    However, President Biden’s NLRB has now reversed the Trump NLRB’s General Motors decision, returning to precedent cloaking employees with an extra layer of protection to use offensive language and engage in similar misconduct in connection with union organizing and other protected activity. In light of Lion Elastomers, employers should carefully consider the circumstances surrounding any union organizing activity or other protected concerted activity, and consult with their experienced Husch Blackwell labor lawyer, before disciplining or discharging an employee for engaging in outbursts, using inappropriate language (even if racist or profane), or engaging in similar misconduct, including on social media.

    This article was reprinted in the State Bar of Wisconsin's Labor &​ Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

    Need help? Want to update your email address?
    Contact Customer Service, (800) 728-7788

    Labor & Employment Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Andrea Farrell and review Author Submission Guidelines. Learn more about the Labor & Employment Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

    State Bar of Wisconsin Logo

Join the conversation! Log in to leave a comment.

News & Pubs Search

Format: MM/DD/YYYY