During some labor conflicts, workers have shouted, or in today’s technological world, made statements on social media that are clearly racially, or other protected class, motivated involving the use “off-color” language toward management and co-workers. When called out on this behavior, offending workers (and their union mentors) have tried to hide behind the National Labor Relations Act (NLRA) arguing that verbal assaults and such behavior is protected concerted activity because it was done in furtherance of their right to engage in collective bargaining and organizing under the law.  Oh, and before any readers that may currently be non-union “check out” from this article, be warned, non-union employers can and do find themselves in front of the NLRB for application of policies that demonstrate anti-union animus or may discipline a worker for “mouthing off” in union organizing context.

For sexual, racial, or other verbal assaults, the Equal Employment Opportunity Commission (EEOC) would hold the employer responsible for any discriminatory or harassing behavior of its workers, including verbal statements that are racial, religious, sexual or other discrimination or harassment of a protected class.

This puts employers experiencing otherwise legitimate labor activism by its workers in a dilemma. The employer is compelled to act against such behavior as a breach of (probably) several of their own policies not to mention, possibly the law. Alternatively, the employer may face the prospect of an unfair labor practice by the National Labor Relations Board (NLRB) that has in more recent times extended its protections to workers who, if in the heat of a labor dispute, make some very ugly discriminatory statements toward management, workers, or others they see as disagreeing with them.

As a real life and recent example, though the threats made were not discriminatory per se, three workers at the GM Flint Assembly plant were fired after the recent strike because they made threats of violence while picketing. The NLRB will no doubt be called on to review the statements made to determine if they crossed the current “line” the NRLB has set for protection of such behavior. In today’s NLRB, worker protections for such behavior do not extend as far as they once did under the Obama Administration.

The NRLB is currently taking a less permissive position and taking a harder look at whether the statements made by the worker were tied to the labor dispute directly or more personal, and therefore, not protected.

Employers confronted by an employee’s verbal abuse are advised to respond to it regardless of whether it may fall within a labor/NLRA context. If the verbal statements involve issues of legal discrimination, employers are advised to err on the side of corrective action. First, as stated above, the NLRB is not tolerating such behavior as it may have a few years ago. Second, the EEOC never tolerates an employer allowing a worker to make racial, sexual, or other legal discriminatory or harassing statements to anybody in the workplace (management, worker, customer, or other).

Additional ASE Resources

Harassment Prevention - Prevent harassment in your organization by sending employees to ASE's Harassment Prevention course.   This course will define various types of harassment in the workplace with a special focus on sexual harassment. Participants will learn the legal definition of harassment and the various types of situations that could be perceived as harassment. It will also identify proactive preventive measures that could and should be undertaken by organizations.  The next course will be January 21, 2020 in Livonia.  Learn more or register here.

Source: EEOC Trumps NLRB On Worker Speech Concerns By Braden Campbell Law360 (November 19, 2019)