Employer attorneys would like to see the National Labor Relations Board adjust the current policy, promulgated during the Obama administration, which they say goes too far in permitting employees to engage in profane and obscene language in connection with union-related activities.
“What the board needs to do is to find a way to harmonize the (National Labor Relations Act) with Title VII (of the Civil Rights Act of 1964) so that an employer can address this kind of behavior in the workplace” and prohibit sexual or racist comments “without fear of violating the NLRA,” said Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia.
“I think ultimately they’ll come up with a standard that gets back to where the law was before this series of cases,” said Michael L. Sullivan, a principal with Goldberg Kohn Ltd. in Chicago, who is chair of the firm’s labor and employment group and advises employers, referring to decisions issued during the Obama administration.
What probably needs to happen is a balancing test, said Christopher V. Bacon, counsel, labor and employment, with Vinson & Elkins LLP in Houston, who litigates employment matters on behalf of private employers.
People who sometimes “get a little emotional” when they engage in concerted activity and those who raise their voices or yell at their bosses should “definitely not” lose the NLRA’s protection. But they “also have to learn how to restrain themselves in a civil manner,” he said.
