Washington Law Review

Comment

License to Offend: How the NLRA Shields Perpetrators of Discrimination in the Workplace

October 01, 2020 | 95 Wash. L. Rev. 1493

Abstract

Congress established the National Labor Relations Board (NLRB or the Board) to enforce the National Labor Relations Act (NLRA or the Act) and ensure fair labor practices in workplaces across the United States. The NLRA protects employees from discipline while engaging in union activity. Under the NLRA, employers and unions must collectively bargain in good faith. Either party may only walk away from the table when another party’s conduct makes good faith bargaining impossible. However, the NLRB’s determination of what conduct constitutes bad faith bargaining and protected union speech is inconsistent with federal anti- discrimination laws. This discrepancy means employers cannot take affirmative steps to prevent hostile work environments. This Comment proposes a new approach: the NLRB should harmonize its decisions delineating speech protected under the NLRA versus speech that may create a hostile work environment and thus subject the employer to further liability under federal anti-discrimination laws. Union speech or conduct that rises to the level of harassment under Title VII of the Civil Rights Act of 1964 (Title VII) should be considered outside the scope of the NLRA’s protections, even if it does not reach the current standard for bad faith bargaining or unprotected speech. This Comment argues that such harmonization should apply irrespective of whether the offensive conduct comes from an employee or nonemployee union member.

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