Biden Labor Board Restores Right to Use Heated Language

In a landmark May Day ruling called Lion Elastomers, the National Labor Relations Board restored the rights of union representatives to use heated language, including occasional profanity, during arguments with management.

The Board ordered employer Lion Elastomers to reinstate steward Joseph Colone with full back pay going back to a 2018 discharge.

The ruling reversed the Trump era’s infamous General Motors decision, which had upended 70 years of precedent protecting workers’ rights to use strong language when pressing union points during grievance discussions and other meetings.

UNCIVIL COMMENTS

Colone was a United Steelworkers member who had worked for Lion Elastomers at a Texas synthetic rubber plant for 41 years. He was fired largely for making two allegedly uncivil comments during a monthly union-management safety committee meeting. In one outburst, he told the safety and security manager to “just go ahead and leave.” In another he said the manager was not doing his job.

Union supporters are enthusiastic about Elastomers because General Motors was one of the most backward decisions issued in the years the Board was under the control of its Trump-appointed chairman, John F. Ring, a management labor lawyer who steadfastly served employer interests.

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The principle behind Elastomers (and the longstanding precedent it brought back to life) is an understanding that grievances and other workplace issues are by nature hot-button disputes where the normal job rules of civility and respect cannot be applied. How could stewards defend their members if they must politely defer to their bosses?

WHAT DOES IT MEAN?

Elastomers is not an easy decision to read. It meanders and uses a lot of lawyer-speak. Here are some of the major takeaways:

1. 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.

2. 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.

3. 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.

TOO LATE FOR SOME

Elastomers does not help the scores of discharged workers who lost their cases or failed to mount challenges due to the now discredited General Motors doctrine. Unfortunately, for most such workers, the short appeals window will prevent them from asserting recourse under Elastomers.

Retired labor attorney Robert M. Schwartz is the author of The Legal Rights of Union Stewards.