NLRB rules on offensive outbursts
For years, I taught labor law to smart law students and they could never understand why the NLRB would allow employees to use vile language, racial slurs, profanity, sexually inappropriate comments, and give the NLRB’s protection to that kind of language simply because the language was being used in the context of protected activity such as picketing or engaging in a grievance dispute between the employee and management.
Well now, as of July 21, the NLRB has changed the rules. They've now got some common sense.
The opinion: General Motors LLC [PDF].
NLRB press release: [Here]
They're simply going to apply the Wright Line test, which is quite familiar to labor lawyers.
What this means is that the General Counsel, who's the prosecutor for the NLRB, will have to prove that one of the motives that the employer had was to get at the protected activity, and at that point the burden of proof will shift over to the employer to prove that the employer would have disciplined the employee anyway.
So now we have some common sense and the labor students will be able to understand what's going on.