The NLRB Harassment Carve-Out

Biden’s board blesses racist and sexist slurs if they’re uttered by union members

By Matthew Mimnaugh. He is a fellow at the Institute for the American Worker. He served as chief counsel at the Equal Employment Opportunity Commission, 2023-24. Excerpts:

"Ms. McFerran has placed labor unions’ demands over workers’ rights. One of her decisions is especially troubling. The NLRB now lets unions and their allies attack workers with racist and sexist language, leaving employers powerless to protect employees from discrimination and harassment.

Ms. McFerran gave such rhetoric the green light in May 2023. Her board’s Lion Elastomers decision held that workers generally can’t be disciplined or discharged by employers for misconduct that occurs within activity “protected by the National Labor Relations Act.” What that means in practice is that workers may engage in racist, sexist and profane conduct so long as it occurs under the guise of union activity.

Lion Elastomers dealt with an employee who was fired after voicing safety concerns in a meeting. Yet as the Institute for the American Worker shows in a new report, the NLRB has revived a standard permitting far more offensive language. In a case currently on appeal before the Second U.S. Circuit Court of Appeals, the NLRB is suing Amazon, seeking to force the company to rehire a worker fired for calling a co-worker a “queen of the slums” and a “crack ho.” The worker yelled these epithets through a bullhorn, yet since he did so during a protest over Amazon’s pandemic-era policies, the NLRB deemed them acceptable.

The revived standard previously covered striking workers who in 1989 accused female colleagues of loose sexual morals, using explicit language. Ditto the union supporter in 1995 who carried a placard that used sexually explicit terms to suggest a female colleague traded sexual favors for career advancement. As for the union worker in 2004 who strung together a slew of sexist and racist insults in a tirade against a colleague, the NLRB let him off the hook."

"The standards revived by the NLRB previously protected a white picketer who in 2006 used the n-word to demean a black security guard. The same goes for the white striking union worker in 2016 who taunted black replacement workers by saying, “I smell fried chicken and watermelon.” Other striking union workers yelled “go back to Africa” and other racial slurs."

"Section 7 [of the National Labor Relations Act] states that employees have the right “to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” Such language obviously refers to strikes, protests and other labor-related activities, but it doesn’t create a loophole for discriminatory language that would otherwise get workers fired."

"after Mr. Biden re-established Democratic control of the NLRB, the board quickly returned to letting unionized workers get away with the most toxic verbal attacks imaginable. That’s what labor unions want—essentially no limitations on what can happen in the context of a workplace protest or unionization campaign."