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Employers Are Walking the Tightrope Between Maintaining a Civil Work Environment and NLRA Compliance

Lately, employers have often found themselves performing a difficult balancing act between compliance with the National Labor Relations Act (NLRA) and maintaining a non-hostile work environment. This stems from two recent cases brought before the National Labor Relations Board (NLRB), where the NLRB found that employees who used vulgar and derogatory speech while participating in union activity were nevertheless engaging in protected speech under section 7 of the NLRA. In a 2016 case, Cooper Tire & Rubber Company v. United Steel, the NLRA ruled that the speech of a union member, who made undeniably racist comments about a group of temporary replacements during a strike, was protected, and the employee could not be disciplined. The second case, NLRB v. Piers Sixty LLC, applied the same principles in an online forum, where the board and the 2nd Circuit ruled an employee who was fired for posting inflammatory and vulgar comments on a Facebook post was protected from termination because the offensive remarks were accompanied by comments about an upcoming union election. In both cases, it was ruled employees could not be terminated for violating the code of ethics and anti-harassment policies while the speech involved union activity. “These cases shined a light on the tension that exists between an employee’s right to engage in protected activity, such as picketing, union voting or even complaints about wages and policies in a non-union environment, and the obligation of employers to ensure a harassment-free workplace,” says David James, a labor attorney at Nilan Johnson Lewis who regularly advises clients on labor management issues. James advises clients to review each case individually, review the offensive comments in the greater context of the employee’s speech or the activities at the workplace, and decide whether the harm or risk from the employment law side outweighs the risk from the labor side. To speak with David James about labor management issues and NLRA compliance, contact him at or 612.305.7573.

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