Yesterday, the National Labor Relations Board freed employers to take disciplinary action against abusive speech by employees targeting managers, supervisors, and co-workers.  In General Motors LLC, the Board swept away years of Obama-era precedents that had permitted employees to engage in profane, abusive, and even racist speech if that speech occurred in the context of exercising rights protected by Section 7 of the National Labor Relations Act – such as challenging disciplinary action in a meeting with company officials, complaining about working conditions in social medial posts, or walking a picket line.  In their place, the Board restored the familiar Wright Line test from 1980, which focuses on whether the employer was lawfully motivated by the employee’s offensive conduct or unlawfully motivated by the employee’s protected activity.

In the Obama-era cases overturned yesterday, the Board had considered abusive conduct in connection with protected activity to be inextricably intertwined with that protected activity and therefore subject to protection under the NLRA.  For example, in cases from 2014-2016, the Board had punished employers for discharging employees who: (1) called the owner of the employer a “f—king mother f—king” and a “f—king crook” while complaining about compensation; (2) attacked a manager on Facebook while encouraging unionization, calling him a “nasty mother f—ker” and saying “f—k his mother and his entire f—king family!!!!”; and (3) shouting racist slurs to black replacement workers from a picket line, including “Hey, did you bring KFC for everyone?” and “I smell fried chicken and watermelon.”

The previous Board

On June 27, 2018, the U.S. Supreme Court overruled a 41-year-old legal precedent to hold that states may not compel public employees to contribute any money to the labor union that represents them.  In Janus v. AFSCME, Council 31, the Court held that public employees have a First Amendment right not to contribute money to a labor union and that states have no compelling interest sufficient to overcome that free speech right.

The plaintiff in that case was an Illinois state employee represented by the American Federation of State, County and Municipal Employees, Council 31.  He refused to join that union because he opposed many of the positions that the union advocated, including positions that the union took in collective bargaining.  But Illinois, like many states, requires public employees represented by a union to pay an “agency fee” consisting of the portion of union dues (in this case 78%) that the union estimates are directly related to its duties as collective bargaining representative.

The Court held that public sector unions in labor negotiations engage in speech on matters of great public concern and that requiring employees to pay an agency fee to the union is essentially compelling them to support the union’s speech – whether or not they agree with it.  The Court also concluded that a state’s desire for “labor peace” and its concern that public unions might collapse under the weight of “free riders” are not sufficient to justify the violation of the employees’ First Amendment rights.

This