Employees who utter racial epithets, launch outbursts, and otherwise engage in harassing, disruptive, or offensive behavior are once again protected by the National Labor Relations Act (“Act”). The National Labor Relations Board (“NLRB” or “Board”) not unexpectedly overturned the prior Board’s decision in General Motors, 369 NLRB No. 127 (May 1, 2020), which had attempted to harmonize the protections of the Act with federal and state anti-discrimination laws. No doubt delighting union-side critics who had complained that the prior NLRB had “weaponized Title VII,” the new NLRB “returned” to a “setting-specific” standard extending the Act’s protection to “conduct occurring in the course of union activity that an employer might characterize as abusive or uncivil.”
Unfortunately, in so doing, the NLRB ignored/minimized cases where picket line and other conduct clearly departed from modern standards of acceptable conduct in the workplace. In this regard, the Board implicitly endorsed offensive outbursts, including those in Cooper Tire and Rubber Co., 363 NLRB 1952 (2016), which described an employee’s use of racial epithets in the course of “protected activity.” In fact, the Board directly approved of Cooper Tires’ protection of racial epithets, remarking there is no support for the proposition “that employers have a legal duty to discipline or discharge” employees uttering such taunts.
Only this extraordinarily union-friendly NLRB could turn such a blind eye to conduct that is objectively offensive, clearly unnecessary for the effectuation of employees’ rights to engage in activity protected by the Act and, in many cases, a violation of Title VII or other employment laws. The majority turned back the clock even farther, citing ancient case law endorsing “animal exuberance” that exceeds the boundaries of lawful conduct momentarily. (Citing NLRB v. Illinois Tool Works, 155 F.2d 811 (7th Cir. 1946)). Of course, in 1946, there was no Title VII, and the NLRB at that time likely would have had nothing to say about racially or sexually offensive conduct on the picket line.
General Motors applied a motivation-based approach to incidents of abusive conduct by employees engaged in union or other protected concerted activity. The Board criticized that approach as being “demonstrably focused on the interests of employers.” This criticism, of course, suggests that an employer could not ever have the interests of employees at heart —even those targeted by discriminatory epithets. The NLRB held that the only way to address such misconduct is to apply the prior test under Atlantic Steel, 245 NLRB 814 (1979), which weighs 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 the employer’s unfair labor practice.
As indicated, the Board’s prior application of Atlantic Steel has led to the Board endorsing blatantly offensive and arguably unlawful activity, as the “nature of the outburst” is but one of the four Atlantic Steel factors to consider. While the NLRB assures us in the decision that it is not deciding a case involving conduct violative of anti-discrimination laws, it refused to “provide the speculative guidance [the dissent] insists is necessary.” Instead, we will all have to trust that this Board – the one that has endorsed decisions protecting epithets – will harmonize the Act and federal and state anti-discrimination statutes.
Lion Elastomers LLC, 372 NLRB No. 83 (May 1, 2023).
