A STUDY IN SEMANTICS: Shouldn’t civil society be, well, civil? And shouldn’t businesses have the ability to safeguard that ethos in the workplace? That ostensible appeal to reasonableness is how employer groups are framing a concerted effort to push back on a string of recent precedents out of the National Labor Relations Board that they say have gone overboard in protecting workers’ speech in the context of labor activism. So much so that it permits vulgar and insulting language to be used against other employees in ways that could violate nondiscrimination laws and run afoul of the Equal Employment Opportunity Commission. “Federal agencies should not deliberately create conflicts between federal laws as it puts employers in the impossible position of choosing which laws to comply with in a given situation,” the business-backed Coalition for a Democratic Workplace wrote to leaders of the Senate HELP and House Education and the Workforce committees last week and called on them to “rein in” the agency. Congressional Republicans have expressed similar sentiments, including as recently as mid-January in a letter to the NLRB demanding further information. Employers argue the limitations posed by the board’s rulings last year in Stericycle (which gave employers less discretion in imposing employee handbook rules) and Lion Elastomers (which reversed a Trump-era standard that made it easier for managers to fire workers who make sexist or racist comments during union activity) are further compounded by the new Cemex Construction Materials Pacific standard. Under Cemex, unfair labor practices committed during an organizing campaign could result in an employer being ordered by the NLRB to bargain with a union even in the absence of an official vote. “You've got the board taking this position that all kinds of harassing, offensive, nasty behavior will be deemed legal … and then you have the EEOC, which requires an employer to maintain a workplace free of harassing behavior,” said Glenn Spencer, the U.S. Chamber of Commerce’s senior vice president of employment policy. “It leaves employers in a bind.” Others are skeptical of such claims. “Isolated incidents or random comments do not create Title VII liability,” Wilma Liebman, a former NLRB chair under the Obama administration, said in an email. “It is mostly rhetoric in my view.” The latest lobbying effort comes not long after a NLRB judge, for the second time, ruled that Amazon violated labor law by firing a worker, Gerald Bryson, who was protesting its Covid safety protocols in 2020 and got in a heated verbal altercation with a female co-worker. (The company has denied wrongdoing.) “Employers weaponize civility,” attorney Seth Goldstein, who represents the Amazon Labor Union, which Bryson helped co-found, told POLITICO. “These civility codes really came about under the Trump board and they limited employees’ rights to engage in protected activity.” Nevertheless the attempt to paint the NLRB as illogical to the general public comes as the agency is fending off a barrage of attacks on its legitimacy — including this week when it heads to court in Texas to defend its recently finalized joint employer test. GOOD MORNING. It’s Monday, Feb. 12. Welcome back to Morning Shift, your go-to tipsheet on labor and employment-related immigration. In honor of the Super Bowl, read this ode to the yellow first-down graphic. Send feedback, tips and exclusives to nniedzwiadek@politico.com and gyarrow@politico.com. Follow us on X, formerly known as Twitter, at @NickNiedz and @YarrowGrace.
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