NLRB revives test limiting protections for workers' profane, racist outbursts

By Daniel Wiessner

Sept 24 (Reuters) - The National Labor Relations Board has ruled that an employer-friendly test for when workers can be disciplined over profane job-related speech or conduct is back on the books after a US appeals court found that the agency's Biden-era decision overruling it was invalid.

The 3-1 ruling issued by the board on Wednesday involving rubber manufacturer Lion Elastomers is unusual because the NLRB generally does not treat appeals court decisions as binding on its own decision-making, under a decades-old policy known as non-acquiescence.

In 2023, a Democratic board majority used the case to overrule a 2020 decision involving General Motors that had limited protections when workers engage in profane or discriminatory conduct in the course of a workplace dispute. But the New Orleans-based 5th US Circuit Court of Appeals in 2024 said that was improper and vacated the NLRB's decision.

The board on Wednesday said that as a result, the 2023 ruling was never valid and the General Motors test remains good law that the NLRB can apply moving forward.

"We find it impossible to reconcile the court's finding ... with any argument that General Motors remains overruled," the board wrote. The NLRB currently has a 3-1 Republican majority appointed by President Donald Trump.

Lawyers for Lion Elastomers and the union that represents its workers did not immediately respond to requests for comment on Thursday.

NON-ACQUIESCENCE

NLRB member David Prouty, the board's lone Democrat, dissented, accusing the majority of using the 5th Circuit decision to sidestep legal requirements that federal agencies engage in reasoned decision-making before adopting new legal standards.

"My colleagues’ position swallows non-acquiescence whole [and] permits a single court decision to undo years of administrative work," Prouty wrote.

The NLRB since at least the 1970s had analyzed on a case-by-case basis whether offensive speech or conduct made in the course of a workplace dispute is protected by federal labor law.

In its 2020 ruling in the General Motors case, the board had said it would instead look at whether employers would have taken the same action against a worker who made profane comments that did not involve a work-related dispute.

Business groups including the US Chamber of Commerce applauded that ruling. They said that prior NLRB precedent had forced many employers to choose between violating labor law or violating laws requiring them to address workplace discrimination and harassment.

But in 2023, the board in Lion Elastomers' case said labor disputes often become heated and overruled General Motors, adopting what it called a "setting-specific" test.

Lion Elastomers disciplined and ultimately fired a worker in 2017 after he got into a heated exchange with managers about working conditions. The case had already reached the 5th Circuit in 2021, when the court remanded it to the NLRB to apply the General Motors standard.

The company appealed the 2023 decision and the 5th Circuit ultimately vacated it and remanded the case again for the board to apply General Motors. The court did not address the merits of the issue, but said the board had exceeded the scope of its initial remand in 2021.

The board's Republican members on Wednesday acknowledged that non-acquiescence is an established board policy, but said that because the 5th Circuit did not resolve the merits of the case they were not acquiescing to the court's interpretation of federal labor law.

The case is Lion Elastomers, National Labor Relations Board, No. 16–CA–190681.

For Lion Elastomers: Steven Cupp of Fisher Phillips

For the NLRB general counsel: Colton Puckett

For the union: Nathan Kilbert of United Steelworkers of America

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