It’s ironic, isn’t it? While the EEOC could find an employer liable for tolerating racist or sexist remarks by employees, the NLRB has repeatedly found employers liable for failing to do so under the guise of protecting “concerted activity” by employees. Will the agency’s rulings against employers be supported by the courts? And will the pattern of protecting such employee conduct continue under the new Administration?

A case pending before a federal appeals court right now, Cooper Tire & Rubber Company v. NLRB, may be a bellwether. The union contract at Cooper Tire was expiring and the company locked out the employees until a new contract with the union was reached. During the lockout, Cooper Tire operated with replacement workers, and the union set up a picket line. One evening, a vehicle of African-American replacement workers drove by the picket line. One employee picketer shouted admittedly offensive racial insults at them. As a result, Cooper Tire terminated the offending employee’s employment for gross misconduct. The union filed a grievance, and an arbitrator sided with Cooper Tire, finding the conduct to be a clear violation of company policies that amounted to gross misconduct. The NLRB regional director refused to defer to the arbitrator’s decision and pursued unfair labor practice charges against the company. The NLRB administrative law judge (ALJ) reversed the arbitrator. The ALJ determined that the racist comments, while offensive, did not reasonably tend to coerce or intimidate employees in exercising their rights protected under the NLRA. The ALJ went on to say that the comments did not create a likelihood of an imminent physical confrontation and that the employee’s termination was “clearly repugnant” to the NLRA. The ALJ ordered the company to reinstate the terminated employee with full back pay. Cooper Tire appealed the decision, which is now pending before the federal Eighth Circuit Court of Appeals. Business groups have filed briefs supporting the company’s position, arguing that the decision essentially requires employers to allow racism in the workplace.

This case comes on the heels of several others in which NLRB issued decisions and restrictions that hinder an employer’s ability to promote a safe workplace free of harassment and discrimination, and to prohibit obscene and harassing conduct that occurs on a picket line. In Consolidated Communications, Inc. v. NLRB, a federal appeals court considers a finding by the NLRB that the suspension of a striking employee for two days for grabbing his crotch, making a “mean hateful gesture” while yelling the word “scab” at a non-unit female employee, and hitting her car mirror as she left work was unjustified. The NLRB said that even though the behavior was “totally uncalled for, and very unpleasant,” it was not actionable sexual harassment under Title VII, did not carry an implied threat of violence or future mistreatment, and likely did not discourage her from reporting to work during the strike. While the federal appellate court agreed with the NLRB that the striker’s conduct was not so egregious as to lose protection, in a separate concurring opinion, D.C. Circuit Judge Patricia Millett rebuked the NLRB for “the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially disparaging conduct that Board decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.”

The NLRB also ruled against an employer that disciplined a union employee for profane, threatening, and insubordinate conduct during a grievance hearing in United States Postal Service v. American Postal Workers Union, AFL-CIO, Portland Oregon Area Local 128. During the hearing, the employee frequently used the “F” word, referred to a supervisor using an obscenity, attempted to physically intimidate the supervisor, and declared that she could curse, say anything she wanted, and do anything she wanted. The NLRB concluded that the employee’s conduct, although “obnoxious,” did not cause her to lose the protection of the National Labor Relations Act.

The NLRB has also protected instances of employees disparaging company products to customers. In MikLin Enterprises, Inc. d/b/a Jimmy John’s v. NLRB, the NLRB issued a decision against a sandwich shop franchisee when it terminated an employee, and warned other employees, who hung posters in the store and nearby public places that depicted “sick” sandwich pictures and “healthy” sandwich pictures. The poster stated that since the employees did not get sick days, “We hope your immune system is ready because you are about to take the sandwich test.” The NLRB found that the conduct was not disparaging or disloyal to the company, but was instead protected activity.

And an employer was found to have violated the NLRA when it terminated an employee who posted obscene phrases about a manager and his family on Facebook in Pier Sixty, LLC v. Hernan Perez and Evelyn Gonzalez. The employee also placed a “Vote YES for the UNION” at the end of his post. The NLRB found that the post was protected as part of an attempt to protest treatment by managers and to encourage workers to vote for union representation.

The NLRB’s protection of social media posts by employees—including those containing obscenities—has been particularly challenging for employers seeking to protect their brand and goodwill. Employers who terminate employees for critical, even false, statements can face liability. For example, the Second Circuit Court of Appeals affirmed the NLRB decision in the case of Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board, a non-union sports bar where one employee complained about the bar’s tax-withholding practices, adding “now I owe money… Wtf!!!” Several customers commented, and another employee added “I owe too. Such an asshole.” The employer terminated both employees. The court upheld the NLRB’s decision that the employer violated the NLRA by terminating the employees, finding that the actions were deemed to be a group of employees discussing labor issues and were not meant to defame the employer. “The Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw [the cook’s] ‘like’ or [the bartender’s] statement could evaluate the message critically in light of that dispute,” the court said. “The board’s decision that the Facebook activity at issue here did not lose the protection of the act, simply because it contained obscenities viewed by customers, accords with the reality of modern‐day social media use,” the court said. “Almost all Facebook posts by employees have at least some potential to be viewed by customers.”

Will this trend continue? Maybe not.

The NLRB is a five-member government panel that was intended to be an unbiased referee of labor disputes, ensuring workers were protected from unfair labor practices and enforcing the NLRA, while resolving potential violations. Currently two of the five Board seats are vacant, leaving the Board with a Democratic pro-union majority for now. Further, the term of the current NLRB General Counsel, appointed by President Obama in 2013, continues through 2017. President Trump has appointed NLRB Member Philip Miscimarra Acting Chair, and Miscimarra has indicated that once the President nominates candidates for the two other seats and they are confirmed, changes are in store. He has been critical of many of the NLRB’s recent decisions as failing to adequately recognize the legitimate needs of employers, and is likely to push for an approach that balances employee rights against employers’ desires for safe and appropriate workplace rules.