NLRB Benchslap: Enabling Racism/Sexism

By John Alan Doran

One highly-respected federal appeals court judge recently called the NLRB out for its history of condoning strike behavior that is racist and sexist. In Consolidated Communications, Inc. v. NLRB, No. 14-1135 (D.C. Cir. September 13, 2016), the D.C. Circuit Court of Appeals enforced part of an NLRB order on an employer’s discipline of strikers. Judge Patricia Millett, whose name has come up as a possible replacement for Justice Scalia, authored the unanimous opinion. But Judge Millett then took the extraordinary step of authoring a separate concurring opinion. Judge Millett dissected and debunked the NLRB’s long line of striker misconduct cases, finding that “[t]hose 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.” And thus, Judge Millett verbalized what many employers have been noting for decades—the double-standard the Board applies to strikers behaving badly when they attack those who cross the picket line with demeaning and degrading messages “that for too much of our history have trapped women and minorities in a second-class workplace status.”

We congratulate Judge Millett for her criticism of this double standard. And, the best way to end this post is with another quote from Judge Millett: “While the law properly understands that rough words and strong feelings can arise in the tense and acrimonious world of workplace strikes, targeting others for sexual or racial degradation is categorically different. 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.”