It’s an old saw people use when it seems no choice will produce a good outcome. It certainly applies in a case ruled on by the National Labor Relations Board a couple weeks ago, which effectively forces businesses to break one law in order to comply with another. Clearly, this is not a good situation for either employers or employees.
Let’s have a look at the background in this particular case – Employee A supports a union fighting for survival in a workplace. This employee brings it upon himself to call attention to pro-union materials left in the employee break room by writing vulgar and offensive terms on the materials and leaving them behind for all to see. In addition to being vulgar, one written message also implies physical or existential harm could come to those addressed. Five women employees complain about the vulgarity and derogatory language and also indicate they felt threatened by the messages. Clearly, the employer is compelled to investigate based on well-established workplace harassment law and as a result does so.
During the investigation, Employee A first denies any knowledge about the writings, but then unwittingly makes a confession to management that he, in fact, did write the offensive and menacing messages left behind for his colleagues. After the union gets involved and all the legal maneuverings are completed, the National Labor Relations Board tells the employer that the employee A’s messages are actually protected speech under the National Labor Relations Act and therefore cannot not be held against him because, even if the terminology he used can be interpreted as sexually demeaning toward women, (as his female colleagues expressed), he really intended his writings to mean something else—supporting the union.
What the NLRB did in its decision is tell workers that the federal law meant to protect and allow them to work in a place free from harassment of any kind is less important than a union protagonist’s right to use vulgarity, sexual innuendo, diminution, degradation or threats to advance their cause. That’s a discouraging message to workers and the Board ought to rethink whether it was the one they intended to deliver. As for employers, it places them squarely between a rock and a hard place.
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