United States: Better Watch Your Mouth: Trump Board Likely To Narrow Protection Of Vulgar And Racially Bigoted Employee Speech

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here & here to find prior posts.

In April and August of this year, the Second and the Eighth Circuit Courts of Appeals affirmed two Board rulings and held that under certain circumstances even extremely vulgar or racially bigoted speech fall within the protections of the NLRA. In Memorandum GC 18-02, the new General Counsel has signaled his interest in reconsidering the analysis in these cases, and narrowing the outer boundaries of speech protections afforded by the Act. Importantly, this is an opportunity for the Trump Board to change direction regarding the application of the Atlantic Steel factors to social media cases.

In Pier Sixty, an employee was terminated for posting the following on Facebook regarding his supervisor Bob: "Bob is such a NASTY MOTHER F***ER don't know how to talk to people !!!!!! F*** his mother and his entire f***cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!." NLRB v. Pier Sixty, LLC, Case No. 15-1841 (2nd Cir. Apr. 21, 2017). The employee posted this online during an authorized break only two days before a contentious union election. Ultimately the ALJ, the Board and the Second Circuit agreed that the vulgar language did not push the comment outside of the NLRA's protected speech. For a more detailed discussion of this case, Click here.

In Cooper Tire & Rubber Co., the ALJ, Board, and Eighth Circuit agreed that a picketer's racially bigoted comments toward African-American replacement workers did not provide the Employer with "just cause" to terminate him. Cooper Tire & Rubber Co. v. NLRB, Nos. 16-2721, 16-2944 (8th Cir. Aug. 8, 2017). The picketer shouted at a van full of African-American replacement workers, "Did you bring enough KFC for everybody?" and asked other picketers if they could "smell fried chicken and watermelon" as the van passed by. The Eighth Circuit held that because the speech was merely offensive and not actually threatening, it was protected.

Although the new General Counsel's Advice memorandum signals that change related to the outer bounds of NLRA-protected speech is on the horizon, until any change is made, Employers should remain vigilant regarding the NLRB's current position but look forward to potential changes coming in 2018.

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