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Labor Officials Limit Protections for Offensive Speech During Union Organizing

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Yesterday, the National Labor Relations Board issued a decision in General Motors LLC that modernizes the standard by which union organizers and members are held accountable for profanity or language that is sexually or racially offensive, clarifying that unions are not automatically exempt from laws intended to prevent workplace harassment. The Coalition for a Democratic Workplace (CDW), of which NRMCA is an active member, provided this statement late Tuesday:

“In the decision the Board reinstated its Wright Line standard used to determine if employees were lawfully disciplined or discharged for abusive or offensive statements in the course of activity protected by the National Labor Relations Act (NLRA or Act). The Wright Line standard requires the NLRB General Counsel to prove the employee’s protected activity was a motivating factor in his or her discipline. If this is met, the employer is then required to prove he or she would have taken the same action if the employee had not been engaged in protected activity."

Under the Obama administration the NLRB had been extremely tolerant of abusive speech, claiming it qualified for protection under the NLRA, according to the CDW. The Editorial Board of The Wall Street Journal called these policies an aberration and a mistake. NLRA Chairman Ring was quoted in an NLRB press release as stating, "For too long 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.”

CDW filed an amicus brief in the case in November 2019 with 13 other employer organizations. The brief argued the following:

  • Some forms of employee misconduct are so egregious they should forfeit the protections of the NLRA;
  • Employers should not be required to tolerate insubordination;
  • The “norms of the workplace” should not be used as an excuse to tolerate harassment, bullying and incivility in the workplace;
  • The Board should abandon any standard that protects sexual or racially offensive language that would otherwise not be tolerated in the workplace simply because it occurs during picketing; and
  • The Board should afford great weight to civil rights and antidiscrimination laws when determining if an employee’s misconduct loses the protection of the NLRA.

For more information, contact Andrew Tyrrell at atyrrell@nrmca.org.

 

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