This may not be an issue on most people’s radars, but not all conduct on the picket line is unregulated. You may have read stories, or witnessed yourself, groups of unhappy employees expressing their disagreements with their employees while marching on the picket line, signs in hand. Some of the comments made are angry and often insulting, but there should be a limit to how far those comments can go. One federal judge expressed her opinion about very issue, and she pulled no punches.
Consolidated Communications v. NLRB
A recent decision in the D.C. Circuit, Consolidated Communications v. NLRB, involved the issue of the appropriateness of certain statements made by employees to co-workers who crossed the picket line. More particularly, federal judge Patricia Millett issued a compelling opinion in which she encouraged the National Labor Relations Board to carry out its mission of protecting the rights of all employees, not only those walking the picket line. Here is the story behind this decision.
Conduct on the picket line
According to the facts stated in the lawsuit, the employees on strike expressed their “frustration and discontent” with sexually and racially demeaning comments, such as calling a female co-worker a “whore.” One male striker exposed his genitals to a female co-worker crossing the picket line. Another employee on strike called an African-American co-worker a “nigger.” The judge, however, rejected the idea that these comments were lawful simply because they were made during a lawful strike, especially since these statements, and others, did not advance a legitimate strike-related message.
Judge concerned with cavalier approach taken by the NLRB
The judge found the Board’s decisions often reflect a “cavalier and enabling approach” toward sexist and racist conduct engaged in during a strike. The judge further stated as follows:
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. 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 judge found no plausible justification for treating picket lines as “free zones for sexually or racially abusive and demeaning conduct.” By dismissing this type of behavior as mere “unpleasantries” the Board is essentially failing to protect the rights of all employees, not just those on strike.
Only speech related to a striking employee’s legal cause is protected
As the judge pointed out, only language and conduct that attempts to persuade others to support the striker’s cause or convey a message regarding the workplace injustices about which the strike is meant to address can be legally protected under the NLRA.
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