Will the NLRB crack down on highly offensive speech?

It's about time.

The NLRB is requesting briefs on whether the Board should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature.

The current NLRB cases really cannot be defended. If – during a strike or during picketing – an employee makes the most outrageous statements (rude, racially offensive, sexually offensive), then this is part of "protected" activity and the employer cannot fire or otherwise discipline an employee for doing that.

Of course, some rough language ought to be tolerated when a union and employer are engaged in economic warfare. But let's find a rule that no longer protects speech that is simply ugly racial and sexual slurs.

The Board seeks public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA). Specifically, the notice seeks comments relating to the following cases: Plaza Auto Center, 360 NLRB 972 (2014), Pier Sixty, LLC, 362 NLRB 505 (2015), and Cooper Tire, 363 NLRB No. 194 (2016).

About the invitation for briefing, Chairman John F. Ring stated: “The Board’s request for briefing on this important topic reflects its long-standing practice of seeking input from interested parties when the Board believes it can benefit from such briefing. We look forward to considering the views of all interested parties.”

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in inviting the filing of briefs. Member Lauren McFerran dissented.

Amicus briefs not to exceed 25 pages in length shall be filed with the Board in Washington, D.C. on or before November 4, 2019. The parties are permitted to file responsive briefs not to exceed 15 pages in length on or before November 19, 2019.

The case is General Motors LLC, 14-CA-197985 and 14-CA-208242. Click here to read the notice and invitation to file briefs.