Profanity, Workers, Management, and the First Amendment

American Labor Law seems, at least in the eyes of some,
to be the protectors of the First Amendment rights of union
workers, stretching those rights for them to a farther extent
than the aforementioned amendment's protections of free
speech for everyone else is concerned. Case in point: in 2012  
some picketing tire workers at Cooper Tire's Ohio plant
shouted racial epithets at several replacement workers who
happened to be black. One such slur was "Go back to Africa,  
you bunch of f*****g losers!"  

Cooper Tire fired one of the abusive strikers, who then sued  
the company claiming that it trampled on his First Amendment  
rights in terminating his employment over the incident.
An administrative judge overturned the decision of the tire
maker, Cooper Tire, which appealed to the National Labor Relations  
Board (NLRB), which upheld the ruling four years later.
Employers say that this ruling and others like it place them
into untenable positions between their workplace standards
with their company rules which uphold them, and labor law
--- possibly joined by antidiscrimination law --- if workers
are to guaranteed the right to make such racist catcalls.
This could lead to employers having no real say in what
transpires in their workplaces if they then have to ask the
NLRB's permission to enforce their companies' codes
of conduct every time even the slightest squabble between          
employees breaks out.   

Fast-forward just a few years, and the NLRB, with some
members appointed by President Donald Trump
having replaced some members that were appointed by
Trump's predecessor Barack Obama, reconsidered these
rulings. A case involving a General Motors employee in
Kansas City was disciplined for being verbally abusive
while acting "in his capacity as a union representative,"
with the said employee having told someone to shove
something up their backside (Your thoughtful Peasant
cleaned up the exact quote). In a second, unrelated incident,
this same employee, having been asked to lower his voice,
reportedly replied in a mocking tone: "Yes, master, sir. 
Is this what you look for, master sir?"

The administrative judge on this case, applying a four-factor
test, held in 2018 that the worker's first profane spewing
was protected. The second, however, was not. The judge
ruled that by repeatedly "using slave vernacular, the worker
"diverted from his union representational purpose" to launch
"a more personal attack".

So, according to these precedents, if an employee angrily uses
slave dialect or resorts to deploying the "F-bomb", the boss
first has to analyze the offending comment(s) with a four-
factor legal test, assisted by a labor lawyer or two before
taking any disciplinary action? GM, for its part, argues that
the administrative judge made several errors in his ruling.
One example was that the automaker said that the judge
"refused to acknowledge" three witnesses who testified that
they thought the first incident "was about to get physical."
The NLRB's precedents, GM continues, "are wholly at odds
with the modern workplace," and "put employers at risk of
losing control of their employees and their employee's safety."

There's more than just red tape that meets the eye here.

In September 2019 the NLRB asked for comment on just what
circumstances should place "profane language or sexually
or racially offensive speech" outside the protection of labor law.
It went so far as to ask whether the standards described in the
Cooper Tire case and similar cases should be modified or
abandoned. This question is still awaiting being settled as
your faithful Peasant writes this post. But the NLRB under
President Obama opened the door too wide to all of this
bedlam, and since then this same board has been straightened
up with some new members with a fresh and sensible
perspective, courtesy of then-President Trump. But now,

with another Democrat in the White House (President Obama's

vice president yet!), what will happen regarding this matter? 


MEM