Under the Obama administration, the National Labor Relations Board has gone to great lengths to expand employee Section 7 rights to the point of absurdity.
The National Labor Relations Act’s Section 7 states, “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
In one case, an employee called his supervisor and management a “f***ing mother f***ing,” f***ing crook[s],” and an “a**hole.” Unsurprisingly, the employee was terminated. However, the NLRB determined that the firing was unlawful.
The Board stated that Section 7 of the NLRA protected the employee’s action and does so “without unduly impairing the Respondent’s [management] legitimate interest in maintaining workplace discipline.” The NLRB ordered the employee be reinstated.
In another case, a Starbucks employee who felt his manager did not assist him quickly enough went off on a profanity-laced rant. The employee said, “about damn time,” “this is bulls**t,” and “do everything your damn self.”
The employee received a final warning and a suspension for his inappropriate behavior. Then a few months later, the same employee told the same manager, in front of customers, “You can go f**k yourself, if you want to f**k me up, go ahead. I’m here.”
Holland & Knight LLP details the great lengths the NLRB went to validate the employee’s insubordinate behavior:
While the Board first held that the employee’s discharge violated the Act, the Court of Appeals for the Second Circuit ordered the Board to reconsider its holding in light of the fact that the employee’s outburst occurred in front of customers and to reconsider Atlantic Steel’s four factor test. The Board again found that the employee discharge violated the Act because the employee was a known union supporter, and the Board believed that his discharge was partially based on his strong support for the union during the campaign and his strong union affiliations.
While the NLRB has legitimized profanity-laced speech, now, in a recent case, has okayed vulgar union buttons that employees wear while serving customers.
In a case, Pacific Bell Telephone Company and Communication Workers of America, the NLRB decided that an employer cannot prohibit employees from wearing buttons that state “Cut the Crap” and “WTF Where’s the Fairness.”
Although Board precedent allows employees to wear union paraphernalia that right can be taken away when the gear is offensive. The NLRB determined that these buttons did not cross the line of vulgarity and the employer was ordered to cease and desist its broad prohibition on union insignia.
Workers should be afforded Section 7 rights to organize and collectively bargain, but it is hard to tell how cursing management or wearing vulgar buttons on the job fall under those rights. Management still needs to be able to maintain some control over the workplace and impose a level of discipline.
The overly expansive view of Section 7 rights the NLRB has taken is just another reason the agency has outlived its usefulness. As I’ve said a number of times, it is time to defund and dissolve the NLRB and transfer its power to an Article III court, which would have some semblance of impartiality unlike the pro-union NLRB.