As I’ve made clear in past posts, I am increasingly frustrated with the current National Labor Relations Board’s clearly pro-union, anti-employer approach. I find many of their decisions to have little or no relationship to common sense or logic. So I found a concurring opinion by Judge Patricia Millett in the recent case of Consolidated Communications, Inc. v. National Labor Relations Board to be of particular interest, as she expresses her “substantial concern with 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.” Judge Millet goes on to say, “These 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.” (!!!!)

To give a little context, the National Labor Relations Act prohibits employers from interfering with employees’ protected rights to engage in collective action regarding the terms and conditions of employment, which includes the right to strike. Under the law, however, serious misconduct by strikers is not protected activity. But what constitutes such serious misconduct? Under the Board’s Clear Pine standard, it is “conduct that amounts to intimidation and threats of bodily harm.” As the U.S. Court of Appeals in the D.C. Circuit noted in the Consolidated Communications case, this standard “offers misbehaving employees greater protection from disciplinary action than they would enjoy in the normal course of employment.”

So the Board has applied this standard to find an appalling litany of sexually and racially offensive conduct to be “protected.” Some of the instances noted by Judge Millett include:

• A male striker calling a female non-striker a “whore” and a “prostitute,” and saying that she was “having sex with [the employer’s] president,” and further calling another female non-striker a “whore” and telling her that she could make more money by selling her daughter at the flea market.
• A male striker yelling at female non-strikers to come see “a real man” and then pulling down his pants and exposing himself to them.
• A male striker targeting a female non-striker by carrying a sign on the picket line reading “Who is Rhonda F Sucking Today?”
• A striker raising both middle fingers and yelling “fuck you n—-r” at an African-American security guard.
• A striker yelling about fried chicken and watermelon in reference to African-American replacement workers.

I think we can all agree that this conduct could not be tolerated in the workplace. Judge Millett notes that, “Nothing in the Board’s decisions has offered any plausible justification, and I can conceive of none, for concluding that the rights of workers – all workers – are protected by turning picket lines into free zones for sexually or racially abusive and demeaning conduct.” And even more compellingly, she offers the following thoughtful and eloquent perspective:

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.

Moreover, what is the practical impact of such conduct when the striking worker returns to the workplace? As Judge Millett observes, “The assumption that such gender- and race-based attacks can be contained to the picket line blinks reality. It will often be quite hard for a woman or minority who has been on the receiving end of a spew of gender or racial epithets – who has seen the darkest thoughts of a co-worker revealed in a deliberately humiliating tirade – to feel truly equal or safe working alongside that employee again.”

Thank you, Judge Millet, for this elegant and pointed reality check. I hope the Board is listening, and will fall into step with its sister federal agencies.