How times change. In 2017, a foul-mouthed advocate of purported employee rights delighted in outing on Facebook his boss—a hard-driving banquet manager who clearly didn’t get the whole employee-relations thing—as a “nasty mother*cker.” (To make his disdain inescapably clear, he also posted something about the boss’s mom.) Seldom given the opportunity to blog about something so lurid, we delighted in reprinting the post in full [note: not appropriate for children]:
Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!
(See National Labor Relations Board v. Pier Sixty, LLC, Nos. 15‐1841‐ag (L), 15‐1962‐ag (XAP) (April 21, 2017).
If you have nothing nice to say, don’t say anything at all, right?
Right. The poster was fired, unsurprisingly. The thing was, as the NLRB held at the time, this rant was protected speech under the National Labor Relations Act because it related to working conditions, and because—seriously—there was usually a lot of swearing at this particular workplace anyway. The bottom line, according to the NLRB, is that his employer was not entitled to fire him, his vitriol towards Bob—and, sadly, Bob’s mother—was motivated by his support for the union. The Second Circuit upheld the NLRB’s order that the employee be reinstated to his job.
In a return to something like decency, if not sanity, the NLRB’s recent decision in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), overturned three employee-friendly standards governing confrontations between employees and management in the workplace, and clarified—if this point needed any real clarification—that a worker can be suspended for lobbing the F-word at his supervisor. The NLRB’s recent decision upends three disparate, context-specific standards—one for outbursts with management in the workplace, another for exchanges between employees and postings on social media, and a third for offensive statements and conduct on a picket line.
The NLRB upended these standards and reinforced the older Wright Line test. Under that older, simpler test, the NLRB General Counsel must first demonstrate that the employee’s protected activity was “a motivating factor” in the discipline or adverse action taken against that employee. The burden then shifts to the employer to demonstrate that it would have fired the worker absent the protected activity, such as by showing it disciplined other employees involving the same offensive conduct. In other words—back to Bob’s nemesis—if the employee would have been fired for using incredibly abusive language, the National Labor Relations Act is not violated, even if the employee can show that he was motivated in part by his support for the union.
The NLRB eliminated the three context-specific standards, noting that they often clash with anti-discrimination laws. The standards often resulted in employees being permitted to say a range of vulgarities at the workplace, as was the case in Pier Sixty. As applied to cases like that, the relevant test applied in decisions such as Pier Sixty “often resulted in reinstatement of employees discharged for deeply offensive conduct,” according to the agency.
As the Chairman of the Board explained: “The Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”
The decision in General Motors not only changes the law applied to offensive conduct in the workplace, but also sends a message to employees that they cannot state whatever they feel like in the workplace or on social media, regardless of how upsetting or heated the situation may be. The takeaway: employers may insist on respectful workplace communications, even if an employee later says that the communication, F-bombs included, was more or less about union issues.