ASE has followed the memo’s and decisions that have come out of NLRB in the last decade, and one “progressive” initiative has always stood out as very archaic. This the National Labor Relations Board (NLRB) position that production workers have a protected right to use disrespectful and vulgar language to express themselves based on their rights under the National Labor Relations Act (NLRA).
The NLRB has historically found swearing and vulgarities acceptable in the workplace as long as it can be shown it is in the context of protected concerted activity. Employers have to put up with it to a point. On the other hand, and more recently, employers could initiate civility rules that encourage employees to express themselves constructively and calmly to fellow employees, customers, and even their supervisors and management.
That is until the Obama administration started holding rules and policies requesting civility as a per se infringement on the employee’s Section 7 rights. Section 7 rights allow workers to express their point of view if its intent was to protest their employer’s labor policies or its treatment of employees. Most any rule that prohibited employees from engaging in “disrespectful”, “negative”, “inappropriate”, or “rude” statements or actions towards the employer or management was unlawful. Workers were even protected if they voiced a false or defamatory criticism. They had to be malicious to lose the NLRA’s protection.
For the last several years, ASE has recommended removal or curtailment of a rule or policy in employee handbooks to avoid a potential unfair labor practice challenge by a union.
Then came the Trump NLRB and many of these “progressive” rulings and decisions began to be rolled back and overturned. The NLRB’s recent memorandum issued new guidance on rules and policies adopting a more balanced approach of looking at rules from both sides. Its Memorandum GC 18-4 addressed civility rules as a rule that would presumptively be lawful unless it could be shown to expressly prohibit or interfere with workers Section 7 rights. Employer rules addressing disparagement of fellow employees were legal and could be enforced.
The Board held that rules prohibiting this type of verbal abuse “advances both employee and employer interest, including the employer’s legal responsibility to maintain a workplace free of unlawful harassment”, Memo page 5.
Not more than two months after Memorandum GC 18-4 came out, the NLRB handed down a decision protecting employees in the following circumstance:
(WARNING: The following contains graphic language not suitable for sensitive adults and children)
A worker at Constellium Rolled Products Ravenswood LLC wrote the words “whore board” on a company sign-in sheet intended for workers to sign up for extra hours. The employee was disciplined, not for the use of the term mind you, but defacing company property. The employee grieved the discipline all the way to the NLRB. The Board held in favor of the offending worker, in a 2-1 decision using text from a previous ruling to state “the language of the shop is not the language of ‘polite society’.” This is how the NLRB addressed the use of the term “whore” towards other employees. If that is not disparagement, what is? And what happened to the charge of defacing a company document and property?
The NLRB continues to “rule” in the past as long as it believes it is furthering worker rights. This position knows very few bounds. The speech that was allowed would have gotten other non-union employees fired, and the EEOC would have been all over the company for allowing a sexist culture and disparate behavior to persist. But not in the world of labor rights.
One other fact may have dissuaded the Board from taking a stance on this type of language, however. The employer’s own supervisors called this sign in sheet the same thing. This might explain why the company pursued a defacing property complaint versus a straight forward violation of disparagement and civility rules.
Source: Seyfarth Shaw The NLRB Continues To Protect Vulgarity In The Workplace Joshua Henderson