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NLRB Continues to Extend Worker Protections Up to the Possible Violation of Civil Rights Law

May 4, 2023

By Michael Burns, courtesy of SBAM-approved partner ASE

On Monday a three-member panel of the National Labor Relations Board (NLRB) overturned a previous decision addressing employee misbehavior and will now examine outbursts and misbehavior of workers during different circumstances involving protected activity through a trio of tests. The tests applied will be “context specific” and will look at picket line activity, confrontation with supervisors or managers, and what is said on social media differently. (Lion Elastomers LLC 2023)

The NLRB seeks to extend protections to workers that are engaged in Section 7 (NLRA) protected activity in the event worker behavior becomes abusive. The NLRB and some courts reviewing the NLRB decisions have extended protections for workers that get into confrontations or engage in profane name calling. Courts in the past have recognized that in the rough and tumble world of labor relations during strikes and picketing the “exchange of views must be expected and protected for negotiations to succeed.”

Monday’s NLRB decision implements a test that would look at such behavior in the context of whether the behavior occurred while on a picket line or during a meeting with management or were statements published on social media.  Previously the NLRB had ruled on such circumstances using a three-part burden shifting test that sought to determine whether the employer’s response to such behavior was consistent with their application of employee rules and was not really retaliation for the employee engaging in protected concerted activity. The ruling on Monday overturned previous rulings that looked more to the employer’s consistent application and legitimate reasons for discipline or discharge rather than whether the context and reason for the misbehavior was within the confines of protected concerted activity and therefore permissible.

This new ruling provides more protection to workers and may ironically even provide cover for racial, sex, or other forms of illegal harassment committed by workers engaged in labor unrest. The NLRB and the Equal Employment Opportunity Commission (EEOC) have looked at situations differently where workers used racial epithets during a labor strike. The NRLB excused the harassing and racist statements if it occurred during a labor dispute. The EEOC expected the employer to discipline employees engaging in that illegal harassment. (The calling of names using racial or sexually explicit language.) The employer is caught in the middle.

Arguably this decision makes it more difficult for the employer to address behavior that may rise to the level of racial or sex or any protected class discrimination if the worker(s) can point to the context of occurring while engaged protected labor activity. The EEOC and NLRB are at odds over this. At least one federal appeals court (Cooper Tire & Rubber Company v, NLRB 8th Circuit. 2017) extended protections under the NLRA to an employee that was fired for shouting racist comments on the picket line.

With more labor protection given to workers that engage in such behavior employers can be put into a Catch-22 situation. An employee that uses racial epithets and is disciplined by the employer for doing so puts the employer into circumstances whereby they will run into paradoxical rules. Violate the NLRA for disciplining the employee for illegal harassment or violate Title VII of the Civil Rights Act for failing to discipline an employee that engages in illegal harassment – quite a predicament.

Employers that are non-union are not exempt from being put into the same circumstances. It must be remembered the NLRA applies to workers regardless of union membership if they too are engaging in protected concerted activity – or can at least show that was their intent. Although a worker in a non-union shop that loses their cool and blurts out some form of speech that crosses the employer’s anti-harassment policy “line” may get fired. However, they may not get any help from the EEOC. In a pinch they may be able to run to the NLRB and claim what they said, though ugly and wrong, was done so in circumstances meant to protect other workers.

ASE will continue to monitor both labor and employment law changes and will report on the developing law.



NLRB Restores Protections for Worker Outbursts. LAW 360 Employment Authority (1/5/2023)

Appeals Court Says Racist Slurs on The Picket Line are Protected Felhaber Larsen MN Employment Law Report (8/17/2017)

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