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Brooklyn Law Review

Taylor Arluck

Abstract

The protection of employee labor rights to organize unions, collectively bargain with employers, and engage in protected concerted activity is the cornerstone of the National Labor Relations Act. And yet the National Labor Relations Board, which enforces it, often falls short. For decades, the NLRB has at times reinstated employees with backpay despite bigoted abusive conduct they engaged in during labor disputes with their employers. For example, the NLRB has reinstated with backpay employees on a picket line who have targeted marginalized coworkers with racial epithets because the employer hired the latter to end a strike. Historically, the NLRB sometimes reinstated employees who engaged in such bigotry because of how contentious labor disputes often became. Over time, to balance the rights of employees and employers, the NLRB developed setting-specific standards to determine whether an employee’s abusive conduct in different locations, such in the workplace, on social media, or along a picket line, warranted protection under the NLRA. Under that old regime, abusive employee conduct was afforded more protection in certain settings than others to supposedly reflect the heightened contentiousness, for example, on a picket line as opposed to in the workplace. However, in 2020, the NLRB abandoned its multiple setting-specific standards for a single, uniform test to determine if abusive employee conduct lost NLRA protection. Specifically, the NLRB adopted a burden-shifting causation test that effectively removed NLRA protection from bigoted employees if their former employer could persuasively show that it fired them not because of antiunion bias during a labor dispute, but rather for a legitimate business reason. This note argues that, while the NLRB’s recent adoption of a single, uniform test is more protective of marginalized employees in the face of bigoted abusive employee conduct than the old, setting-specific standards, it still falls short by leaving open the possibility that bigoted employees could be reinstated with backpay. Specifically, this note claims that the NLRB is wrong to focus on an employer’s motivation behind adverse action against a bigoted employee when determining if that employee should be reinstated with backpay. Rather, this note posits that the NLRB should hold that bigoted conduct is a per se violation of the NLRA that categorically bars employees who engage in it during labor disputes from reinstatement with backpay. Ultimately, this note argues that the NLRB should center employee harm—not employer motivation—because marginalized employees should never be forced to share the same workplace with coworkers who expose their bigotry during labor disputes, no matter how contentious they may become.

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