In a strongly penned concurring opinion, a D.C. Circuit Court of Appeals Judge took the National Labor Relations Board to task on Tuesday for

the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.

The D.C. court’s decision in Consolidated Communications v. NLRB, — F.3d –, Case No. 14-1135 (D.C. Cir. Sept. 13, 2016), largely upheld the findings of the Board that the employer unlawfully terminated and/or suspended a number of employees for strike-related misconduct.  The decision sets forth the Board’s long-standing standards for protecting strike conduct and for disqualification from such protection. Applying these standards to the striker misconduct in the cases at hand, the court concluded that most of these incidents were not severe enough to lost the Act’s protection and warrant the discipline imposed.

In one of the relevant incidents, the Board concluded that a striker did grab his crotch and made obscene and intimidating gestures toward a female employee reporting to work. Nevertheless, the Board also held that this behavior was not sufficiently egregious to warrant the suspension imposed by the employer following the strike. On review, the D.C. Court of Appeals held:

Given the rough-and-tumble nature of picket lines and the fleeting nature of [the striker’s] offensive misconduct, we cannot conclude that the Board erred in its assessment of the objective impact of this particular conduct in this instance. See Allied Indus. Workers, 476 F.2d at 879 (“‘Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.’”) (quoting Montgomery Ward & Co., 374 F.2d at 608 ); NMC Finishing v. NLRB, 101 F.3d 528, 532 (8th Cir. 1996) (noting the “rough and tumble economic activity permitted by the policies established by Congress through the NLRA”).

It is this holding that appears to have compelled Circuit Judge Millett to write separately. In a remarkable eight-page concurring opinion, Judge Millett catalogs the recent examples of the Board’s countenance of racial epithets, and older cases permitting misogynous vulgarities directed at women.  In her view:

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.

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. Conduct that is designed to humiliate and intimidate another individual because of and in terms of that person’s gender or race should be unacceptable in the work environment. Full stop.

The entire concurrence is worth a read, for employers navigating strike conduct and students of labor relations and the Board’s jurisprudence alike.  Judge Millett’s conclusion:

To be sure, employees’ exercise of their statutory rights to oppose employer practices must be vigorously protected, and ample room must be left for powerful and passionate expressions of views in the heated context of a strike. But Board decisions’ repeated forbearance of sexually and racially degrading conduct in service of that admirable goal goes too far. After all, the Board is a component of the same United States Government that has fought for decades to root discrimination out of the workplace. 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. It is 2016, and “boys will be boys” should be just as forbidden on the picket line as it is on the assembly line.