NLRB Gives Employees Extra Leeway to Use Offensive Language

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.

The Trump Administration’s NLRB accused the Board’s Atlantic SteelClear Pine, and Pier Sixty cases of permitting “appallingly abusive … misconduct, including racially and sexually offensive language.” For example, in the 2016 Cooper Tire & Rubber case, 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. 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.   

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 experienced labor counsel (such as the authors of this article) 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.


Editor’s Note:  This article was written by guest authors Quinn StigersAdam Doerr, and Terry Potter of the law firm Husch Blackwell, and is published by AGC with permission. Terry Potter and Adam Doerr are members of the AGC Labor and Employment Law Council, a network of attorneys who represent AGC members and chapters in labor, employment, and employee benefits matters.

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