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This Article curates and analyzes ten recent cases where the NLRB decided whether or not § 7 protected employee swearing, with a view toward defining the implications of these decisions for employers and employees in terms of employer rules and discipline, and employee rights and limits thereon. The Article outlines the NLRB’s role and perspective in cases where employees are disciplined or discharged for engaging in profanity at work and/or on social media when the conduct in question is otherwise protected concerted activity. The Article summarizes the facts in each case while analyzing the legal framework that the NLRB uses to evaluate whether the conduct is protected, and, even if it is, whether the employee loses the protection of the NLRA because of the egregiousness of the employee’s conduct, as it weighs the totality of the employee’s conduct objectively. Further, the Article discusses: (1) employer rules relating to profanity that run afoul of the NLRA because they unduly interfere with employee exercise of protected concerted activity, and (2) the Board’s ongoing directive to revise such rules as part of its remedy for these employer unfair labor practices. Whether the employee conduct is face-to-face or on social media, the NLRB sets standards on what communication is protected and what is not, depending upon whether the subject matter falls within § 7 and whether the employee crosses the line into behavior that the Board finds does not deserve the protection of the Act. The survey includes NLRB cases involving employees swearing in a face-to-face context using union buttons, and other union materials, and on email and social media.



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