Obama Appointee: Union Strikers Can Insult Anyone Except Women and Minorities

“‘Boys will be boys’ should be forbidden on the picket line”

Patricia Ann Millett
Patricia Ann Millett / AP

Federal labor law has long tolerated rough words in picket lines, but a federal judge once considered a prospective Obama Supreme Court appointee is asking regulators to crack down on "racial and misogynistic epithets."

A three-judge panel at the Washington, D.C., Circuit Court of Appeals unanimously upheld a National Labor Relations Board ruling that a telecommunications company violated the rights of several striking workers whom it suspended during a 2012 strike, while reversing the board regarding the appeal of a fired worker, who intentionally drove slowly and boxed in her non-striking co-workers.

Judge Patricia Ann Millett, writing for the court, found that Consolidated Communications was wrong to suspend two workers, one of whom "gave [a co-worker] the middle finger and uttered its associated obscenity," because they "were not the type of seriously coercive or intimidating behavior that forfeits a worker’s protection." It also cleared another male worker who was punished for grabbing his crotch as a female co-worker walked past and later striking her side view mirror because the there was no evidence that he touched her car.

Judge Millett, who was appointed to the appeals court after Sen. Harry Reid (D., Nev.) pushed through the nuclear option in 2013 and was considered a potential replacement for Justice Antonin Scalia, took the rare step to also pen a concurrence along with her opinion.

In it, she called on the NLRB and other labor regulators to eliminate any insults directed at workers or managers that are insulting to women and minorities. She pointed to past cases in which a male worker called a female co-worker a "whore" for supporting management as an example of the conduct the board must no longer tolerate.

"Subjecting co-workers and others to abusive treatment that is targeted to their gender, race, or ethnicity is not and should not be a natural byproduct of contentious labor disputes, and it certainly should not be accepted by an arm of the federal government," she said. "It is 2016, and ‘boys will be boys’ should be just as forbidden on the picket line as it is on the assembly line."

American labor law has long tolerated heated words and insults on both sides of a picket line, in order to accommodate the tense environment of a labor dispute.

"Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers," the court ruled in Montgomery Ward v. NLRB (1967). Judge Millett said that rough and tumble words and "conduct designed to humiliate" should still be tolerated as long as they are inoffensive to women and minorities.

"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," she said. "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 board, Judge Millett said, must take more than established labor law precedent into consideration when assessing what constitutes coercive and intimidating behavior. She urged the NLRB to weigh the "dark history" of sexism and racism in all its considerations and scolded the board for turning a blind eye to the "enduring effects" of a labor dispute that features such insults.

"The problem is that the Board’s decisions seem in too many cases to answer that question from the perpetrator’s perspective, oblivious to the dark history such words and actions have had in the workplace (and elsewhere)," she said. "Nor do the Board’s decisions grapple with the enduring effects in the workplace of such noxious language and behavior."

The NLRB did not respond to request for comment.