A judge for the D.C. Circuit Court of Appeals took the National Labor Relations Board, the main federal agency charged with enforcing federal labor laws, to task this week for repeatedly tolerating racist and sexist conduct by striking workers.
The judge said the agency’s “boys will be boys” attitude should be dropped and it should enforce anti-discrimination laws equally.
The judge’s comments came in response to a case called Consolidated Communications v. NLRB, in which the board ordered an employer to reinstate a worker who, while on strike, grabbed his crotch and made obscene and threatening gestures toward a female employee reporting to work. The board had held that the behavior was protected under the National Labor Relations Act. A three-judge appeals court panel upheld the board’s decision on Tuesday.
Judge Patricia Millett, one of the three, conceded that the labor board’s decision in the case was technically correct but nevertheless wrote a concurring opinion arguing that the board needed to re-examine the standards it is applying.
“Those 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,” Millett wrote. “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.”
The eight-page opinion notes that the board has long tolerated abusive behavior by strikers, citing cases going back to the late 1970s. It has done so on the theory that labor strikes are typically contentious and confrontational, so therefore special allowances must be made. That understanding has continued through the present day, she said.
Millett noted a 2006 case in which the labor board protected a striker who raised both middle fingers to an African-American security guard and shouted racial obscenities at him and a 2016 case in which the board protected a striker who said “I smell fried chicken and watermelon” to black replacement workers. In the Consolidated Communications case, the board ruled that the crotch-grabbing and obscene gestures did not constitute a threat by the striker against the woman.
The judge said nobody expects “Emily Post rules” to apply in a strike but added that the labor board is charged with covering the “rights of all employees,” not just those on the picket line. “Holding that such toxic behavior is a routine part of strikes signals to women and minorities both in the union and out that they are still not truly equals in the workplace or union hall,” Millett said.
