This week's Labor Notes highlighted a very important NLRB decision that flew under the radar this month: effective immediately, the Trump-era General Motors decision, which significantly restricted how workers could speak to their employers in the context of labor disputes, has been overturned.
Under General Motors, comments in grievance meetings such as "stop acting like an asshole"; obscene picket line banter by striking employees; and vitriolic social media posts all became acceptable grounds for discipline or firing of an employee, provided they would be violations of an employer's code of conduct. These had historically been protected under both existing labor law and established principles such as the “equality principle” or “stewards’ immunity,” which recognized the contentious nature of labor disputes. Prior to the General Motors decision it was only particularly hateful or vicious speech—using racial slurs, for example—that could be used as grounds for dismissal. That standard and the aforementioned principles have both been restored by the Biden NLRB.
Labor Notes summarizes that under the ruling:
- Civility can no longer be required. With General Motors decisively overruled, employers can no longer claim that the law allows them to discipline representatives for “lack of civility.” Protected venues include grievance hearings, safety discussions, negotiation sessions, and criticisms published on the internet or in union publications.
- Equality principle revived. The NLRB cited a series of past rulings providing that when engaged in union business, union representatives are to be viewed as “equals” with management. Vigorous debate and “salty” language must be tolerated, including allegations that managers are not telling the truth.
- Picket line rhetoric does not put strikers at risk. The decision makes clear that picket line activities must also be tolerated under a permissive standard. Pickets cannot be fired for verbal insults alone. Employers must have proof that the picket threatened bodily harm or otherwise intimidated line-crossers from coming to work.