Can language in the workplace, even if uttered during otherwise protected conduct, lose its “protected” status under the National Labor Relations Act (NLRA) because the language is too offensive?  The answer is, generally, yes.

Prior NLRB Rulings Protected Offensive Language

However, in several rulings, the Obama-era National Labor Relations Board (NLRB) ruled that certain speech, which was patently offensive, nonetheless retained its protected status.  On September 5, 2019, the current NLRB invited briefs on the proper legal standard for when extremely profane or offensive language loses its protection.

The NLRB’s invitation made reference to three Obama-era rulings, including the 2016 opinion in Cooper Tire & Rubber, which I criticized here.  In Cooper Tire, a union member’s obviously racial slurs directed toward African American replacement workers during a strike was deemed to remain protected conduct, and the company was ordered to reinstate the employee who had been terminated for such racial slurs.

What’s more, since the NLRB is given deference by the federal courts in interpreting the NLRA, the Eighth Circuit Court of Appeals, in a 2-1 opinion, affirmed the NLRB’s order that the company had to reinstate the employee who issued the racial taunts.  More on that opinion can be found here.

Instructions for Filing Public Comment with NLRB

The case  is General Motors, NLRB Case 14-CA-197985, found here. The NLRB has invited interested parties to file briefs (not to exceed 25 pages) with the Board on or before November 4, 2019, at www.nlrb.gov and click on “eFiling.”

The NLRB has invited interested persons to address the following questions:

1. Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the NLRA?
2. To what extent should employees be granted some leeway when engaged in protected activity to use profane or offensive speech?
3. Should the NLRB continue to consider the “norms of the workplace” in making these determinations? If so, should employer policies prohibiting profanity or offensive conduct be considered?
4. Should the NLRB adhere to, modify, or abandon prior rulings (including the rulings in Cooper Tire)?
5. What relevance should the NLRB attribute to the non-discrimination laws such as Title VII in making these determinations?

I am hopeful that this invitation for briefs is a first step toward a more appropriate standard – a standard that halts the NLRB’s propensity to protect offensive, racist slurs, which undermine the type of workplace the NLRB historically claimed to be protecting and promoting.