Protecting Workers From Union Harassment: The NLRB Piles Another Burden Upon Employers

by | Jun 6, 2024 | Cemex Decision, Don't Be a Jerk, EEOC, IBT, Labor Relations Ink, Labor Relations Insight, Leadership, Legal, NLRB, Politics, UAW, Unions

Biden’s NLRB sure loves to create more headaches for companies while favoring unions. A few recent examples include the following: (1) Requiring employers to immediately retool their employee handbooks; (2) Issuing the new Cemex rule that obliges employers to immediately recognize a union or quickly file an RM petition to hold a proper election.

Get ready for the next pain in the butt, although this is a pain that has been inflicted during other administrations. The NLRB previously declared that uncivil language on the picket line – conduct that would otherwise be prohibited in a workplace context – was protected for union activists as long as they weren’t threatening workers.

What’s old is new again: The Institute for the American Worker (I4AM) released a new report that follows up on Biden’s decision to renominate Lauren McFerran, who has a history of protecting such picket-line conduct.

This is the same memo in which Biden hands an advisory position to UAW chief Shawn Fain. It doesn’t take much of a leap to conclude that these nominations show how eager the Biden administration is to hand catch-22 situations to employers as part of his role as “most pro-union President ever’.

Consider this: An employer must protect its employees from workplace harassment and discrimination under Title VII of the 1964 Civil Rights Act, as enforced by the Equal Employment Opportunity Commission (EEOC). Yet the NLRB has upheld a conflicting standard favored by McFerran that has allowed derogatory and discriminatory language if it’s uttered during concerted activity under the NLRA.

Employers in a no-win position: The I4AM report quotes union activists’ racist slurs and demeaning rhetoric, including “I smell fried chicken and watermelon” as well as “crack-ho” and “gutter b*****” with the latter caught on video coming from an Amazon Labor Union co-founder. Other offenses include signage that accuses women of exchanging sexual favors in exchange for work promotions.

Allowing this conduct under the NLRA defies logic, as previously noted in a previous case by a D.C. Court of Appeals judge, who wrote that 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.”

In 2024, employers find themselves forced to pick a poison pill:

  • If they act to discipline union activists who engage in harassing and abusive conduct, they could run afoul of Biden’s NLRB and rack up Unfair Labor Practice allegations.
  • If they do not act, an employer could be liable for anti-discrimination lawsuits filed by workers and sanctions from the EEOC.

A pause, but at what cost? The NLRB and EEOC have been working on a joint memo that includes guidance on how to navigate picket-line harassment of workers by unions. However, EEOC commissioners have paused the joint memo until a public hearing takes place, and there has been no notice of a hearing, which will likely be postponed until a fitting conflict arises.

Employers in limbo: Employers now face the burden of not knowing whether the NLRB or EEOC’s standards will be enforced when moving to protect their own employees. Committee on Education and the Workplace Chair/Rep. Virginia Foxx blasted this dilemma in a letter criticizing how “the Biden administration’s insistence on appeasing labor unions takes precedence over protecting workers from harassment.”

It’s not a fantastic look in the land of opportunity.

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