That's what makes the Starbucks case now pending before the Fifth Circuit so frustrating.
The employee at the center of this case wasn't just "venting." In a private Snapchat group, he referred to his store manager as a "f--king p--sy" and "chicken s--t," called a coworker a "useless f--king" employee and a "dumb f--king b--ch," and told management to "suck my f--king d--k." That’s not heated debate. That’s not protected concerted activity. That's workplace misconduct, plain and simple.
Yet the NLRB took the position that disciplining—and ultimately firing—this employee violated the NLRA because Starbucks supposedly tolerated profanity generally and because the employee happened to be a prominent union supporter.
That's a dangerous line to draw.
Yes, context matters under labor law. Yes, employers can't selectively enforce rules to punish union activity. But there has to be a line. Employers have legal obligations to maintain respectful workplaces, prevent harassment, and protect employees from abusive conduct. When the Board treats language like this as effectively protected because it occurred during a union campaign, it puts employers in an impossible bind.
Here's the real-world problem: if an employer disciplines this behavior, it risks an unfair labor practice charge. If it doesn't, it risks a hostile work environment claim from the employee called gender-based slurs.
Union organizing does not suspend basic workplace standards. The NLRA was never meant to require employers to tolerate personal attacks, misogynistic slurs, or degrading language toward coworkers. Protecting concerted activity should not mean normalizing abuse.
Yes, employees can organize, complain, and advocate forcefully. But they can't be abusive jerks while doing it. And employers should not be punished for drawing that line.