by Bart N. Sisk
A federal judge recently called out the National Labor Relations Board (NLRB) for its history of taking a “cavalier and enabling” approach toward the “sexually and racially demeaning misconduct of some employees during strikes.” Let’s take a closer look at the case. 
Judge appalled that NLRB gives ‘refuge’ to intolerable conduct
In Consolidated Communications, Inc. v. NLRB, the D.C. Circuit was asked to review an employer’s actions in disciplining a number of employees for their allegedly strike-related misconduct. One of the incidents involved a male striker grabbing his crotch and making an obscene gesture toward a nonstriking female employee. The employer suspended the striker for violating its policy on sexual harassment.
The NLRB characterized the incident and the striker’s gesture as “totally uncalled for and very unpleasant” but found his actions to be protected—not an uncommon finding by the Board. On appeal, the D.C. Circuit upheld the NLRB’s ruling, citing the “rough-and-tumble nature of picket lines” and the “fleeting nature” of the offensive conduct. A disappointing decision to be sure, but still not that surprising.
What is unusual about the case is that in a separate concurring opinion, Judge Patricia Millett blasts the NLRB for a long history of protecting and enabling strikers who verbally attack employees for exercising their right to cross a union picket line even when the strikers resort to the use of racial epithets and sexist threats, taunts, and gestures. Judge Millett writes:
[NLRB] 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.
While recognizing that union strikes can prompt coarse language and strong feelings, Judge Millett finds no excuse or protection for conduct that targets others for sexual or racial degradation: “Conduct that is designed to humiliate and intimidate another individual because of and in terms of that person’s gender or race should be unacceptable in the work environment. Full stop.”
To support her argument, Judge Millett cites (and questions) a number of decisions in which the NLRB protected strikers from discipline, including termination, despite their use of sexually or racially abusive language and demeaning conduct. Examples of the conduct protected by the Board include:
- A striker calling a nonstriker a “whore” and a “prostitute” and shouting that she could make more money selling her daughter at the flea market;
- A male striker yelling at female nonstrikers to come see a “real man” and then exposing himself; and
- A striker shouting, “F___ you[,] N___er” at an African-American security guard.
Critical of the NLRB’s decisions dismissing such behavior as mere “unpleasantries” common to labor disputes, Judge Millett says:
Such language and behavior have nothing to do with attempted persuasion about the striker’s cause. Nor do they convey any message about workplace injustices suffered, wrongs inflicted, employer mistreatment, managerial indifference, the causes of employee frustration and anger, or anything at all of relevance about working conditions or worker complaints. Indeed, such behavior is flatly forbidden in every other corner of the workplace because it is dangerously wrong and breathes new life into economically suffocating and dehumanizing discrimination that we have labored for generations to eliminate. Brushing that same behavior off when it occurs during a strike simply legitimates the entirely illegitimate, and it signals that, when push comes to shove, discriminatory and degrading stereotypes can still be a legitimate weapon in economic disputes.
In closing, Judge Millett reminds the NLRB, “And by the way, the Board is supposed to protect the rights of all employees covered by the [National Labor Relations Act (NLRA)].” Amen to that.
NLRB also guilty of bad-faith litigation
Many observers, including me, have been critical of the NLRB for pushing its prolabor agenda while seeming to ignore the law in the process. In another rebuke, the D.C. Circuit recently found that the NLRB engaged in bad-faith litigation in Heartland Plymouth Court, MI, LLC v. NLRB by forcing an employer to waste time and money fighting a case the Board knew it couldn’t win. The court described the NLRB’s actions as a “suicide mission” and accused the Board of being motivated by its desire to simply “lock horns” with the employer.
The court characterized the NLRB’s conduct as designed to send a “chilling message” to employers caught in its crosshairs: “Even if we think you will win, we will still make you pay.” According to the court, the NLRB’s “roguish” behavior either compels employers into a settlement favorable to the Board or forces the employer to “pay for and survive the process of fighting” with the agency.
While recognizing that the NLRB may consider it “chump change,” the court ordered the Board to pay a little over $17,000 in attorneys’ fees to the employer.
Bottom line
To be sure, it has been a bad couple of weeks for the NLRB. It remains to be seen whether the criticism of the Board’s actions has any lasting impact.
Bart Sisk is an attorney in Butler Snow LLP‘s labor and employment practice group in the firm’s Memphis office. He may be reached at bart.sisk@butlersnow.com.