NLRB continues to rewrite the law, approving abusive language

In a surprising and sweeping decision, the National Labor Relations Board (NLRB) rejected the carefully crafted accord with the Equal Employment Opportunity Commission (EEOC) and its strongest supporters in Congress and made clear it regards “workers’ rights” under the National Labor Relations Act (NLRA) as the preeminent law of the workplace.

They couldn’t control themselves

At issue was whether racist, misogynist, homophobic, and other foul and abusive language could be the basis for discipline even when it took place in the context of plainly union-related activity, such as collective bargaining negotiations, grievance disputes, etc. For decades, the Board had excused such outbursts “as an integral and inseparable part” of the tense contexts in which they occurred. With the enactment of Title VII of the Civil Rights Act of 1964 and state-level fair employment practice laws, however, employers were put in an untenable position, facing claims from abused employees if it did nothing on the one hand, and unfair labor practice charges if it disciplined on the other.

Just over two years ago, the NLRB finally acceded to the lobbying from the EEOC, Congress, and a growing number of courts and changed its standard in the General Motors case. An employer was now permitted to discipline an employee if the conduct warranted it, even when union activity was involved. But the balanced approach has now been scuttled.