368 NLRB No. 68
General Motors LLC
368 NLRB No. 68
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
General Motors LLC and Charles Robinson. Cases
14–CA–197985 and 14–CA–208242
September 5, 2019
NOTICE AND INVITATION TO FILE BRIEFS
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN, AND EMANUEL
On September 18, 2018, Administrative Law Judge
Donna N. Dawson issued a decision in the above-
captioned case, finding that the Respondent violated the
Act by suspending employee Charles Robinson because
he directed a profane outburst at supervisor Nicholas
Nikolaenko during an April 11, 2017 meeting in which
Robinson was engaged in union activity.1 The judge
analyzed the case under the four-factor test set forth in
Atlantic Steel, 245 NLRB 814, 816 (1979), for determin-
ing whether misconduct in the course of otherwise pro-
tected activity lost the employee the protection of the
Act.2 The judge found that under Atlantic Steel’s “nature
of the employee’s outburst” factor, Robinson’s conduct
was not as egregious as the outburst at issue in Plaza
Auto Center, 360 NLRB 972 (2014).3 The judge also
found that the remaining three Atlantic Steel factors fa-
vored protection, and she concluded that Robinson’s out-
burst did not lose the protection of the Act.
The judge then found that two subsequent outbursts by
Robinson, on April 25 and October 6, lost him the pro-
tection of the Act. Both incidents involved altercations
between Robinson and Manager Anthony Stevens. Dur-
ing the April 25 incident, Robinson directed racially
charged language at Stevens. During the October 6 inci-
dent, Robinson played loud music that contained profane
and offensive, racially charged lyrics each time Stevens
entered or exited the room.4
1 While discussing, in his role as union committeeperson, overtime
support for employees engaged in cross-training, Robinson told Niko-
laenko that he did not “give a fuck about [his] cross-training” and that
Nikolaenko could “shove it up [his] fucking ass.”
2 The Atlantic Steel factors are (1) the location of the discussion, (2)
the subject matter of the discussion, (3) the nature of the employee’s
outburst, and (4) whether the outburst was provoked by the employer’s
unfair labor practices.
3 In Plaza Auto, employee Aguirre called Tony Plaza, the owner of
the business, a “fucking mother fucking,” a “fucking crook,” and an
“asshole,” told Plaza that he was stupid, nobody liked him, and every-
one talked about him behind his back, and warned Plaza that if Plaza
fired him, Plaza would regret it. 360 NLRB at 973.
4 According to witnesses, the songs Robinson played included lyrics
that were sexually as well as racially offensive.
In its exceptions brief, the Respondent asks the Board
to overrule Plaza Auto, which it describes as an “ill-
advised” decision “wholly at odds with the modern
workplace” that “put[s] employers at risk of losing con-
trol of their employees and their employees’ safety.”5
The Respondent likewise urges the Board to overrule
Pier Sixty, LLC, 362 NLRB 505 (2015), enfd. 855 F.3d
115 (2d Cir. 2017), in which the Board found that an
employee’s profanity-laced Facebook posts attacking his
supervisor did not lose the Act’s protection. Similarly,
the Respondent argues that while the judge correctly
found that Robinson’s attacks on Stevens were unpro-
tected, she should have given more weight to their racial-
ly offensive nature. In this regard, the Respondent urges
the Board to overrule Cooper Tire, 363 NLRB No. 194
(2016), enfd. 866 F.3d 885 (8th Cir. 2017), in which the
Board found that an employee did not lose the protection
of the Act when he shouted racially offensive statements
at employees crossing a picket line.
Plaza Auto, Pier Sixty and Cooper Tire addressed cir-
cumstances in which extremely profane or racially offen-
sive language was judged not to lose the protection of the
Act. The Board’s treatment of such language (as well as
sexually offensive language) has been criticized as both
morally unacceptable and inconsistent with other work-
place laws by Federal judges6 as well as within the
5 See Respondent’s brief in support of exceptions at 5 fn. 1, 14–15.
6 Although, as our colleague observes, the courts of appeals have
not repudiated the Board’s tests in this area, the vehemence of judicial
criticism must give us pause. See, e.g., Cooper Tire & Rubber Co. v.
NLRB, 866 F.3d at 894, 898 (Beam, J., dissenting) (“No employer in
America is or can be required to employ a racial bigot. Indeed, . . .
requiring . . . the petitioner to do so here is tantamount to requiring that
Cooper Tire violate federal anti-discrimination and harassment laws,
including Title VII and 42 U.S.C. § 1981, as well as numerous other
similar state and local laws. . . . [T]he Board repeatedly broadens the
protections for such repulsive, volatile, incendiary, and heinous activity
time and again in cases such as these.”) (internal quotation marks omit-
ted); Consolidated Communications, Inc. v. NLRB, 837 F.3d 1, 20, 24
(D.C. Cir. 2016) (Millett, J., concurring) (“I write . . . to convey my
substantial concern with the too-often cavalier and enabling approach
that the Board’s decisions have taken toward the sexually and racially
demeaning misconduct of some employees during strikes. Those deci-
sions have repeatedly given refuge to conduct that is not only intolera-
ble by any standard of decency, but also illegal in every other corner of
the workplace. . . . After all, the Board is a component of the same
United States Government that has fought for decades to root discrimi-
nation out of the workplace. Subjecting coworkers and others to abu-
sive treatment that is targeted to their gender, race, or ethnicity is not
and should not be a natural byproduct of contentious labor disputes, and
it certainly should not be accepted by an arm of the federal govern-
ment.”); see also Adtranz ABB Daimler-Benz Transportation v. NLRB,
253 F.3d 19, 26 (D.C. Cir. 2001) (“According to the Board . . . , it is
perfectly acceptable to use the most offensive and derogatory racial or
sexual epithets, so long as those using such language are engaged in
union organizing or efforts to vindicate protected labor activity. Ex-
pecting decorous behavior from employees is apparently asking too
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
Board.7 Mindful of this criticism, the Board now invites
the parties and interested amici to file briefs to aid the
Board in reconsidering the standards for determining
whether profane outbursts and offensive statements of a
racial or sexual nature, made in the course of otherwise
protected activity, lose the employee who utters them the
protection of the Act. The Board asks the parties and
amici to address either some or all of the following ques-
tions, as they see fit.
1. Under what circumstances should profane language
or sexually or racially offensive speech lose the protec-
tion of the Act? In Plaza Auto, although the nature of
Aguirre’s outburst weighed against protection, the
Board found that the other three Atlantic Steel factors
favored protection, and it concluded that Aguirre re-
tained the Act’s protection. And although the Plaza
Auto majority did not say that the nature of the outburst
could never result in loss of protection where the other
three factors tilt the other way, it also did not say that it
ever could. Are there circumstances under which the
“nature of the employee’s outburst” factor should be
dispositive as to loss of protection, regardless of the
remaining Atlantic Steel factors? Why or why not?
2. The Board has held that employees must be granted
some leeway when engaged in Section 7 activity be-
cause “[t]he protections Section 7 affords would be
meaningless were we not to take into account the reali-
ties of industrial life and the fact that disputes over
wages, hours, and working conditions are among the
disputes most likely to engender ill feelings and strong
responses.” Consumers Power Co., 282 NLRB 130,
132 (1986). To what extent should this principle re-
main applicable with respect to profanity or language
that is offensive to others on the basis of race or sex?
3. In determining whether an employee’s outburst is
unprotected, the Board has considered the norms of the
workplace, particularly whether profanity is common-
place and tolerated. See, e.g., Traverse City Osteo-
pathic Hospital, 260 NLRB 1061 (1982). Should the
much. . . . We do not share [this] low opinion of . . . working people . .
. . America’s working men and women are as capable of discussing
labor matters in intelligent and generally acceptable language as those
lawyers and government employees who now condescend to them.”).
In any event, the Board does not require appellate court approval before
it invites briefing regarding how best to administer the Act.
7 See, e.g., Plaza Auto, 360 NLRB at 986 (former Member Johnson,
dissenting) (“[I]n the modern, extensively regulated workplace, it is
essential for an employer to proscribe profane behavior that could
under other employment laws be viewed as harassing, bullying, creat-
ing a hostile work environment, or a warning sign of workplace vio-
lence. The Board is not an ‘überagency’ authorized to ignore those laws
in its efforts to protect the legitimate exercise of Section 7 rights in both
unrepresented and represented workforces.”).
Board continue to do so? If the norms of the workplace
are relevant, should the Board consider employer work
rules, such as those that prohibit profanity, bullying, or
uncivil behavior?
4. Should the Board adhere to, modify, or abandon the
standard the Board applied in, e.g., Cooper Tire, supra,
Airo Die Casting, 347 NLRB 810 (2006), Nickell
Moulding, 317 NLRB 826 (1995), enf. denied sub
nom. NMC Finishing v. NLRB, 101 F.3d 528 (8th Cir.
1996), and Calliope Designs, 297 NLRB 510 (1989), to
the extent it permitted a finding in those cases that ra-
cially or sexually offensive language on a picket line
did not lose the protection of the Act? To what extent,
if any, should the Board continue to consider context—
e.g., picket-line setting—when determining whether ra-
cially or sexually offensive language loses the Act’s
protection? What other factors, if any, should the
Board deem relevant to that determination? Should the
use of such language compel a finding of loss of pro-
tection? Why or why not?
5. What relevance should the Board accord to antidis-
crimination laws such as Title VII in determining
whether an employee’s statements lose the protection
of the Act?8 How should the Board accommodate both
8 The dissent says that we are addressing issues that are not present-
ed. However, the facts of this case involve profanity as well as racially
and sexually offensive language. And while the setting involves a
workplace encounter and not picket-line or online conduct, the latter
contexts are “not presented” only if one assumes that different loss-of-
protection standards must apply in different settings, and we think it
appropriate to invite briefing regarding the extent to which, if any, the
Board should continue to do so. We take no position as to how that
question or any question posed in this Notice and Invitation should be
answered. Thus, the dissent is simply wrong when she says that we are
“forecast[ing] the desire to limit the protections of Section 7” or “sug-
gest[ing]” “changes” in the Board’s loss-of-protection standards. The
dissent also says that we should use rulemaking to address these issues,
but “the choice between rulemaking and adjudication lies in the first
instance within the Board’s discretion.” NLRB v. Bell Aerospace Co.,
416 U.S. 267, 294 (1974).
The dissent broadly claims that “the Board’s decisions create no
conflict with employer’s obligations under Title VII,” citing the Eighth
Circuit’s decision in Cooper Tire & Rubber Co. v. NLRB, 866 F.3d at
891–892. However, in Cooper Tire, a majority merely found that the
statements at issue in that case did not create a hostile work environ-
ment. At least one other federal court of appeals has found that a single
racially-charged slur directed towards an employee could support a
hostile work environment claim. See Castleberry v. STI Group, 863
F.3d 259, 265–266 (3d Cir. 2017); see also Adtranz ABB Daimler-Benz
Transportation v. NLRB, 253 F.3d at 27 (“We cannot help but note that
the NLRB is remarkably indifferent to the concerns and sensitivity
which prompt many employers to adopt [civility rules]. Under both
federal and state law, employers are subject to civil liability should they
fail to maintain a workplace free of racial, sexual, and other harass-
ment.”). Also relevant is a 2016 EEOC report that recommended the
EEOC and the NLRB “confer, consult, and attempt to jointly clarify
and harmonize the interplay of the [NLRA] and federal EEO statutes.”
GENERAL MOTORS LLC
3
employers’ duty to comply with such laws and its own
duty to protect employees in exercising their Section 7
rights?
Briefs not exceeding 25 pages in length shall be filed
with the Board in Washington, D.C., on or before
November 4, 2019. The parties may file responsive
briefs on or before November 19, 2019, which shall not
exceed 15 pages in length. No other responsive briefs
will be accepted. The parties and amici shall file briefs
electronically by going to www.nlrb.gov and clicking on
“eFiling.” Parties and amici are reminded to serve all
case participants. A list of case participants may be
found at https://www.nlrb.gov/case/14-CA-197985 and
https://www.nlrb.gov/case/14-CA-208242
under
the
heading “Participants.” If assistance is needed in E-
filing on the Agency’s website, please contact the Office
of Executive Secretary at 202-273-1940 or Executive
Secretary Roxanne Rothschild at 202-273-2917.
Dated, Washington, D.C. September 5, 2019
______________________________________
John F. Ring,
Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel
Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER McFERRAN, dissenting.
As the Board and courts have long recognized, “[t]he
protections Section 7 [of the National Labor Relations
Act] affords would be meaningless were [the Board] not
to take into account the realities of industrial life and the
fact that disputes over wages, hours, and working condi-
tions are among the disputes most likely to engender ill
feelings and strong responses.”1
Chai Feldblum and Victoria Lipnic, Select Task Force on the Study of
Harassment
in
the
Workplace
(available
at
https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm)
(last
visited 14 August 2019). The dissent dismisses the possibility that
current interpretations of the Act could create a conflict with Title VII
obligations, or at least one that would support any reconsideration of
precedent. We believe the potential conflict is self-evident. Rather
than debate with her whether revisions to precedent are therefore war-
ranted, we believe the better course is to consider that issue after we
have received and considered the views of interested parties.
1 Consumers Power Co., 282 NLRB 130, 132 (1986).
The Supreme Court has recognized as much in estab-
lishing a heightened standard for allegedly defamatory
statements made in the course of labor disputes.2 The
Board recently explained that its decades-old test for
examining speech in the context of protected activity
appropriately recogniz[es] that the economic power of
the employer and employee are not equal, that tempers
may run high in this emotional field, that the language
of the shop is not the language of ‘polite society,’ and
that tolerance of some deviation from that which might
be the most desirable behavior is required . . . and of-
fensive, vulgar, defamatory or opprobrious remarks ut-
tered during the course of protected activities will not
remove activities from the Act’s protection unless they
are so flagrant, violent, or extreme as to render the in-
dividual unfit for further service.
Constellium Rolled Products Ravenswood, LLC, 366 NLRB
No. 131, slip op. at 3 fn. 12 (2018) (quoting
Dreis & Krump Mfg., 221 NLRB 309, 315 (1975),
enfd.
544 F.2d 320 (7th Cir. 1976)). Not a single Federal appel-
late court has rejected the Board’s general approach or its
specific tests for determining whether an employee has lost
the protection of the Act in particular contexts.
Yet today the majority forecasts the desire to limit the
protections of Section 7 by overhauling the Board’s well-
established standards for evaluating when employees
lose the protection of the Act based on their conduct dur-
ing workplace meetings, while on the picket line, and in
online posts. While I welcome the return (at least in this
case) to the Board’s sound, traditional practice of seeking
public participation before reconsidering significant
precedent, the scope of the majority’s inquiry reaches far
beyond the issues presented in this case, and the majority
has offered no good reason for revisiting long-settled
law.
This case involves the Respondent’s three suspensions
of employee Charles Robinson for his conduct during
meetings with management. Applying the well-
established standard set forth in Atlantic Steel,3 the ad-
ministrative law judge found that Robinson retained the
protection of the Act during the first meeting but lost the
protection of the Act during subsequent meetings. Ra-
ther than simply analyze whether the judge correctly ap-
plied Atlantic Steel to the facts here, the majority has
2 See Old Dominion Branch No. 496, Nat’l Assn. of Letter Carriers
v. Austin, 418 U.S. 264, 272 (1974).
3
245 NLRB 814, 816 (1979). In evaluating whether employees
lose the protection of the Act based on their conduct during workplace
meetings, the Board considers: (1) the location of the discussion, (2) the
subject matter of the discussion, (3) the nature of the employee’s out-
burst, and (4) whether the outburst was provoked by the employer’s
unfair labor practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
decided to use this case as a jumping-off point to address
issues that clearly are not presented, including the differ-
ent tests the Board applies in determining whether em-
ployees lose the protection of the Act based on their
speech while picketing and while online.4 There was, of
course, no picket line or online conduct at issue in this
case. If the majority intends to engage in such a compre-
hensive rework of Board precedent outside the circum-
stances of the case at hand, rulemaking would be the
appropriate procedure.5 At the very least, the majority
should wait for cases to arise that actually present the
issues of interest, in real world factual contexts. Indeed,
if several cases involving similar issues were pending
before the Board, the majority could easily consolidate
those proceedings for a more comprehensive review of
the law. But rather than pursue any of these options, the
majority has instead grown impatient and continued an
unfortunate trend by using this case as a vehicle to reach
out to address issues that are clearly not presented.6
Today’s notice specifically targets three Board deci-
sions for possible reversal: Plaza Auto, Pier Sixty, and
Cooper Tire.7 Two of the three decisions were enforced
by Federal appellate courts, and the third (decided after a
court remand) apparently was not challenged at all. In
support of its inquiry, the majority cites criticism from
one former Board Member and separate opinions by two
individual circuit court judges.8 The majority fails to
4 As the Board has recognized, the Atlantic Steel framework is not
well-suited to evaluating employee speech on the picket line or online.
See, e.g., Triple Play Sports Bar & Grill, 361 NLRB 308, 311 (2014)
(explaining that Atlantic Steel “is tailored to workplace confrontations
with the employer”), enfd. sub nom. Three D, LLC v. NLRB, 629
Fed.Appx. 33 (2d Cir. 2015). Instead, the Board evaluates picket-line
misconduct under the standard set forth in Clear Pine Mouldings, con-
sidering “whether the misconduct is such that, under the circumstances
existing, it may reasonably tend to intimidate employees in the exercise
of rights protected under the Act.” 268 NLRB 1044, 1046 (1984), enfd.
765 F.2d 148 (9th Cir. 1985), cert. denied 474 U.S. 1105 (1986). And
the Board has applied a totality-of-the circumstances test in evaluating
employees’ online conduct. See, e.g., Pier Sixty, LLC, 362 NLRB 505,
506 (2015).
5 See, e.g., Boeing Co., 365 NLRB No. 154, slip op. at 33–34 (2017)
(Member McFerran, dissenting) (criticizing the majority’s decision to
use a case involving a single camera rule to set forth a new standard for
evaluating all facially neutral work rules).
6
See, e.g., Ridgewood Healthcare Center, Inc. and Ridgewood
Health Services, Inc., 367 NLRB No. 110, slip op. at 15 & fn. 6 (2019)
(Member McFerran, dissenting) (collecting cases demonstrating the
majority’s pattern of overreach).
7 Plaza Auto Center, Inc., 360 NLRB 972 (2014); Pier Sixty, LLC,
362 NLRB 505 (2015), enfd. 855 F.3d 115 (2d Cir. 2017); Cooper Tire
& Rubber Co., 363 NLRB No. 194 (2016), enfd. 866 F.3d 885 (8th Cir.
2017).
8 The majority also relies on an inapposite case involving a facial
challenge to an employer rule, rather than the application of such a rule
to an employee outburst during the course of Sec. 7 activity. See Ad-
tranz ABB Daimler-Benz Transportation v. NLRB, 253 F.3d 19, 25
grapple with the fact that while the courts may some-
times disagree with Board decisions applying the law to
the facts of particular cases, no court has rejected the
Board’s legal approach in any of these areas.9 The Fed-
(D.C. Cir. 2001). Moreover, the District of Columbia Circuit there
generally recognized that “labor negotiations produce occasional in-
temperate outbursts and, in a specific context, such language may be
protected.” Id. at 27. Indeed, citing Adtranz, the court itself has found
such outbursts protected. See, e.g., Kiewit Power Constructors Co. v.
NLRB, 652 F.3d 22, 27–28 (D.C. Cir. 2011) (intemperate statements
during workplace meeting). The court has also recognized that em-
ployer rules ostensibly intended to promote civility in the workplace
may actually be adopted and applied to stifle Sec. 7 activity. See Care
One at Madison Ave., LLC v. NLRB, 832 F.3d 351, 362–364 (D.C. Cir.
2016) (affirming Board’s determination that employer memorandum
urging employees “to behave with ‘dignity and respect’” was unlawful,
where employees would reasonably have interpreted memorandum, in
context, as warning not to engage in Sec. 7 activity).
The majority’s citation to an EEOC task force report is also inappo-
site. The task force “recognize[d] that broad workplace ‘civility codes’
which may be read to limit or restrict certain forms of speech may raise
issues under the [National Labor Relations Act], which is outside the
jurisdiction of the EEOC.” Chai Feldblum and Victoria Lipnic, Select
Task Force on the Study of Harassment in the Workplace at 56 (availa-
ble at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm).
Accordingly, the task force recommended that “EEOC and the National
Labor Relations Board should confer, consult, and attempt to jointly
clarify and harmonize the interplay of the National Labor Relations Act
and federal EEO statutes with regard to the permissible content of
workplace ‘civility codes.’” Id. at 69 (emphasis added). Nothing in the
task force report suggests that Board doctrine at issue here was in any
way inconsistent with federal equal employment statutes.
9 The courts have enforced numerous Board decisions finding that
employees did not lose the protection of the Act based on their lan-
guage and conduct during workplace meetings, on the picket line, and
in online posts. See, e.g., Murray American Energy, Inc. v. NLRB, 765
Fed.Appx. 443, 447 (D.C. Cir. 2019) (loud and rude language during
workplace meeting); Meyer Tool, Inc. v. NLRB, 763 Fed.Appx. 5, 8 (2d
Cir. 2019) (heated language and defiant conduct during workplace
meeting); Novelis Corp. v. NLRB, 885 F.3d 100, 103, 108 (2d Cir.
2018) (vulgar online posts); Cooper Tire & Rubber Co. v. NLRB, 866
F.3d at 890–891 (racially offensive comments while on the picket line);
NLRB v. Pier Sixty, LLC, 855 F.3d at 122–126 (profane language in
online posts); S. Freedman & Sons, Inc. v. NLRB, 713 Fed.Appx. 152,
160 (4th Cir. 2017) (profane language during workplace meeting);
Consolidated Communications, Inc. v. NLRB, 837 F.3d 1, 12 (D.C. Cir.
2016) (profane language and obscene and sexually offensive conduct
on the picket line) Caterpillar Logistics, Inc. v. NLRB, 835 F.3d 536,
547–548 (6th Cir. 2016) (profane and threatening language during
workplace meeting); Three D, LLC v. NLRB, 629 Fed.Appx. at 36–37
(profane language in online posts); Kiewit Power Constructors Co,
supra, 652 F.3d at 27–28 (intemperate statements during workplace
meeting); Nevada Service Employees Union, Local 1107 v. NLRB, 358
Fed.Appx. 783, 785 (9th Cir. 2009) (critical statements on website);
Wal-Mart Stores, Inc. v. NLRB, 137 Fed.Appx. 360, 361 (D.C. Cir.
2005) (profane language during workplace meeting); NLRB v. Air
Contact Transport, Inc., 403 F.3d 206, 211 (4th Cir. 2005) (loud and
boisterous language during workplace meeting); NLRB v. Honda of
America Mfg., Inc., 73 Fed.Appx. 810, 814–816 (6th Cir. 2003) (insult-
ing language in newsletter); Coors Container Co. v. NLRB, 628 F.2d
1283, 1288 (10th Cir. 1980) (vulgar language during workplace meet-
ing); Allied Industrial Workers v. NLRB, 476 F.2d 868, 879 (D.C. Cir.
GENERAL MOTORS LLC
5
eral courts have uniformly accepted that “not every im-
propriety committed during [otherwise protected] activi-
ty places the employee beyond the protective shield of
the [A]ct” and that employees must be given “some lee-
way for impulsive behavior.”10
The majority emphasizes potential tension between the
Board’s decisions and antidiscrimination laws, but the
courts have made clear that the Board’s decisions create
1973) (obscene, threatening, and harassing language and conduct while
on the picket line).
10 NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965).
As the D.C. Circuit recently explained, “[t]he question . . . is not
whether the outburst was something to be encouraged—no outburst
is—but whether it was so unreasonable as to warrant denying protec-
tions that the Act would otherwise afford. . . . And, as we have stated
before, that only happens when the employee’s actions are not simply
bad, but opprobrious.” Kiewit Power Constructors Co. v. NLRB, 652
F.3d at 27–28 (internal quotations omitted). See also U.S. Postal Ser-
vice v. NLRB, 652 F.2d 409, 412 (5th Cir. 1981) (endorsing the Board’s
“reasonable and established policy that in the context of grievance
meetings the Act should be lenient with spontaneous employee insub-
ordination”).
In the picketing context, meanwhile, the courts have recognized that
“not every incident occurring on the picket line, though harmful to a
totally innocent employer, justifies a refusal to reemploy a picketing
employee for acts that exceed the bounds of routine picketing. Impul-
sive behavior on the picket line is to be expected especially when di-
rected against non-striking employees or strike breakers.” Montgomery
Ward & Co. v. NLRB, 374 F.2d 606, 608 (10th Cir. 1967). Further, the
courts have found that “some types of impulsive behavior must have
been within the contemplation of Congress when it provided for the
right to strike.” Allied Industrial Workers v. NLRB, 476 F.2d at 879.
See also NMC Finishing v. NLRB, 101 F.3d 528, 531 (8th Cir. 1996)
(“We assume . . . that some obscenities hurled in the rough and tumble
of an economic strike may, indeed, be protected speech. By that we
mean, it may be misconduct but not misconduct that is sufficient to take
the acts outside the protections afforded strikers under the NLRA.”)
Regarding employee speech online, the courts have emphasized that
the “location” of such speech “is a key medium of communication
among coworkers and a tool for organization in the modern era.”
NLRB v. Pier Sixty, LLC, 855 F.3d at 125. With this principle in mind,
the courts have cautioned against applying traditional “public outburst”
analysis because it “could lead to the undesirable result of chilling
virtually all employee speech online.” Three D, LLC v. NLRB, 629
Fed.Appx. at 37; see also NLRB v. Pier Sixty, LLC, 855 F.3d at 125.
And the courts have recognized that Board decisions finding employees
did not lose the protection of the Act based on their obscene online
posts “accords with the reality of modern-day social media use.” Three
D, LLC v. NLRB¸ 629 Fed.Appx. at 37.
In addition, the premise of the majority’s inquiry seems to disregard
the important statutory concerns and policy rationales underlying the
Board’s decisions. For example, the third question in the notice and
invitation to briefs indicates that the majority may jettison any consid-
eration of the norms of the workplace when determining whether an
employee loses the protection of the Act. It would defy both common
sense and decades of Board precedent in a variety of areas to disregard
evidence of whether the employer consistently sanctions the use of
profanities and other offensive conduct or whether the employer has
only taken adverse action because such conduct occurred in the context
of otherwise protected activity. See, e.g., Coors Container Co., 238
NLRB 1312, 1320 (1978), enfd. 628 F.2d 1283, 1288 (10th Cir. 1980).
no conflict with employers’ obligations under Title VII.11
The Supreme Court has said repeatedly that Title VII is
not “a general civility code for the American work-
place.”12 Neither is the National Labor Relations Act. It
is not the role of the Board, in interpreting the Act, to
make it as easy as possible for employers to maintain
workplace decorum.13 The role of the Board is to en-
force the rights that the Act provides in support of the
goals that the Act clearly sets out.14
The framing of the majority’s inquiry, meanwhile,
paints a false picture of the Board’s jurisprudence in this
area, implying that the Board always finds employee
outbursts protected. But, contrary to the majority, our
cases demonstrate that the Board has routinely found that
employees lost the protection of the Act based on their
misconduct.15 Indeed, the judge found that the employee
11 Cooper Tire & Rubber Co. v. NLRB, 866 F.3d at 891–892 (sur-
veying precedent and rejecting employer’s argument that reinstating
employee who made racially offensive comments would conflict with
employer’s obligations under Title VII). The majority argues that a
single offensive remark could potentially create a hostile work envi-
ronment claim under Title VII. However, as the Supreme Court has
explained, “isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of em-
ployment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Further, based on the facts of an individual case, the Board could readi-
ly find that extremely serious language was unprotected under extant
precedent.
12 See, e.g., Oncale v. Sundowner Offshore Services, Inc., 523 U.S.
75, 80-81 (1998).
13 Cf. Meyers Industries, Inc., 281 NLRB 882, 888 (1986) (observ-
ing that Board “was not intended to be a forum in which to rectify all
the injustices of the workplace” and is “not empowered to correct all
immorality or illegality arising under all Federal and state laws”), affd.
sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied
487 U.S. 1205 (1988).
14
The majority’s apparent desire to restrict employees’ protected
concerted activity in the name of civility was already reflected in its
holding that employer “civility” rules are always lawful to maintain,
despite their predictable chilling effect. Boeing Co., 365 NLRB No.
154, slip op. at 15 & fn. 76. As I pointed out in dissent, “common
forms of protected concerted activity under the National Labor Rela-
tions act may reasonably be understood as uncivil” and “[w]ith respect
to uncivil language, . . . the Supreme Court has observed that ‘[l]abor
disputes are ordinarily heated affairs; the language that is commonplace
there might well be deemed actionable per se in some state jurisdic-
tions.’” See id., slip op. at 39–40 (quoting Old Dominion Branch,
supra, 418 U.S. at 272). The combined effect of Boeing and the chang-
es suggested by the majority today—particularly suggesting that an
employer’s civility rules should be relevant in defining what loses the
Act’s protections—runs the risk of allowing employers to limit the
scope of the Act’s protections through their own, unilaterally imposed
definitions of civil workplace behavior. Empowering employers to
restrict the scope of Sec. 7’s protections in this manner undermines the
fundamental goals of the Act. See, e.g., William R. Corbett, The Nar-
rowing of the National Labor Relations Act: Maintaining Workplace
Decorum and Avoiding Liability, 27 Berkeley J. Emp. & Lab. L. 23
(2006).
15 See, e.g., KHRG Employer, LLC d/b/a Hotel Burnham & Atwood
Café, 366 NLRB No. 22, slip op. at 2 (2018) (finding employee lost the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
lost the protection of the Act on two occasions here.
Nothing in Board precedent, then, or in the decisions of
the reviewing courts, suggests that there is something
inherently wrong with the Board’s approach. This case
certainly could readily be decided under extant prece-
dent—and it should be.
For all these reasons, I cannot support the majority’s
decision to comprehensively revisit the Board’s loss-of-
protection of the Act while delivering employee petition based on secu-
rity breach); Public Service Co. of New Mexico, 364 NLRB No. 86, slip
op. at 7–8 (2016) (finding employee lost the protection of the Act dur-
ing workplace meeting based on disruptive behavior); Richmond Dis-
trict Neighborhood Center, 361 NLRB 833, 835 (2014) (finding em-
ployees lost the protection of the Act based on Facebook posts advocat-
ing insubordination); Gene’s Bus Co., 357 NLRB 1009, 1009 fn. 4
(2011) (finding employee lost the protection of the Act based on dis-
ruptive behavior during workplace meeting).
protection standards in this case. However, given that
the majority is determined to proceed, I acknowledge
that seeking public input before changing precedent is
better than not doing so, and I will fully consider with an
open mind whatever evidence and public input might
result from the majority’s request for briefing. I trust
that my colleagues will do the same and remain equally
open to adhering to current law.
Dated, Washington, D.C. September 5, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD