Published
February 14, 2024
During the Obama administration, the U.S. Chamber reported on a troubling trend at the National Labor Relations Board (NLRB) with respect to its interpretation of so-called Section 7 rights under the National Labor Relations Act (NLRA). That part of the law guarantees the right of employees “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection,” which seems innocuous on its face.
However, the Obama-era NLRB stretched its interpretation of that language in a campaign to overturn common workplace policies. This resulted in a theater of the absurd that, in some cases, protected truly outrageous behavior. One particular area of scrutiny was employers’ discipline of workers for racist, sexist, and other profane speech or conduct, which is not so innocuous. Yet somehow, the NLRB warped the meaning of Section 7 rights to protect many instances of such behavior.
The problem for employers, though, is that allowing racist and sexist behavior likely violates Title VII of the Civil Rights Act of 1964, which protects employees and job applicants from discrimination based on race, color, religion, sex, and national origin. Thus, the Obama-era NLRB’s stance pitted one federal statute against another, leaving employers exposed to potential liability.
When the Trump administration came to office, a new majority put an end to the prior Board’s exceedingly broad protections in its 2020 General Motors decision, but the current majority has returned to its previous nonsensical reading of Section 7. A recent decision by an administrative law judge (ALJ) involving Amazon underscores the issue.
In April 2020, an Amazon employee was protesting outside a company facility in Staten Island, New York, and during that protest, the employee participated in a verbal altercation with a female coworker. The altercation consisted of the employee launching misogynistic and sexist epithets toward a female coworker with a bullhorn, all of which was recorded on video (one can listen to the patently offensive remarks around 23:00).
In a summary of the incident, an Amazon human resources executive wrote that “[a]busive, vulgar, or harassing language to a supervisor, fellow associate, or vendor is prohibited and classified as a … violation of the [company’s] Standards of Conduct. ... It is personally offensive and creates an intimidating, hostile, degrading, humiliating or offensive work environment.” As might be expected, Amazon promptly terminated the employee for his uncouth behavior. More importantly, had Amazon failed to act, it might have found itself in the crosshairs of a complaint to the Equal Employment Opportunity Commission for fostering a hostile workplace.
Nevertheless, the dismissal prompted a complaint to the NLRB, and an NLRB ALJ ruled in favor of the employee initially in April 2022, when the General Motors decision was the guiding precedent. A year later, in May 2023, the Board issued its decision in Lion Elastomers LLC, which overturned General Motors and returned the Board to its expansive reading of Section 7 that existed before it.
Within a month, the Board remanded the ALJ’s Amazon decision back to him with instructions to issue a supplemental decision in light of Lion Elastomers. As a result, the ALJ reopened the case record and, on January 29, 2024, issued his supplemental decision in which he unsurprisingly ruled against Amazon again, saying that the employee’s conduct was protected by Section 7 under either standard.
All of the procedural back-and-forth in this case has prevented the full Board from ruling on the merits of this case, but it surely will, as Amazon has promised to appeal. Eventually, the company will be able to file a court challenge if an adverse decision is issued, which, given the current Board’s proclivities, is certainly possible.
In a different case several years ago, one federal judge denounced the NLRB’s “cavalier and enabling approach that the Board’s decisions have taken toward … sexually and racially demeaning misconduct.” Hopefully, whatever court ultimately considers Amazon’s case will agree and similarly rebuke the NLRB’s myopic battle against civil rights protections.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
