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Excerpted from: Michael H. LeRoy, Slurred Speech: How the NLRB Tolerates Racism, 8 Columbia Journal of Race and Law 209 (2018) (233 Footnotes) (Full Document)


Michael H LeRoyDoes the National Labor Relations Act (NLRA) protect racist speech by employees? This Article finds that the National Labor Relations Board (also called NLRB, or Board) often tolerates these messages. My data come from cases involving campaign speech in union representation elections. This Article also examines a smaller number of cases involving racist speech on picket lines during labor disputes. Here, too, the NLRB often rules that employees engage in protected concerted activity when they voice racial slurs. This Article concludes that the NLRB should afford less legal protection for racist speech by adopting Title VII's standard for hostile work environment.

There are three justifications for my proposal. First, these NLRB rulings undermine Title VII's prohibition of racial harassment. This means that if employers discipline employees who use racist speech in these campaigns, employers face an unfair labor practice ruling or a re-run election under the NLRA. Second, racist speech is more pervasive. NLRB policies shelter the type of racist speech that occurred when workplaces were formally segregated. This approach is outdated and conducive to exploitation by a new generation of white supremacists. Third, NLRB speech doctrines have unwittingly opened the door to form whites-only labor unions. Some cases in this data set protect pro-union messages that promote white worker interests. No federal law--in this case, the NLRA--should offer a platform to re-segregate the American workplace.

The NLRB's permissive speech doctrine is rooted in its broad interpretation of protected concerted activity under the National Labor Relations Act. To fulfill the purposes of this labor law, Section 7 provides employees a right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Today, the NLRB applies this law to contexts that lawmakers never imagined in 1935--for example, when employees post comments on social media. One problem, however, is that digital platforms are used for racist tweets, Facebook posts, and emails. The NLRB should narrow its speech doctrine for representation elections and concerted activity by denying protection to speech that expresses racial animus.

. . .

White supremacy has returned to America's mainstream. As the Ku Klux Klan formed and grew in the aftermath of the Civil War, they organized mob actions and terror campaigns. Blacks were targets, but so were their white sympathizers. Congress held hearings to consider legislation to combat Klan violence. Many witnesses described the extreme terror inflicted by white supremacists. By the 1870s, the Ku Klux Klan's effectiveness was thwarted by a combination of military and court actions. The group re-emerged, however, in the early 1900s in response to Thomas Dixon's racist trilogy that romanticized the Klan.

The Ku Klux Klan sought to segregate the work of black people, a group whom they viewed as suited only for menial agricultural labor. For the first half of the twentieth century, labor unions co-opted this ideology in bylaws that mandated whites-only or segregated locals. By the 1940s, however, labor's segregationist practices were challenged. The Supreme Court created a union's duty of fair representation. This legal duty was used on a case-by-case basis to abolish formal segregation in labor unions but did not address the Ku Klux Klan's societal influence.

The Klan's malignant ideology is back and appeals to many identity groups. White supremacy has its own racial music, internet sites, code language for bigotry, warped connection to Christianity, and blood-and-soil justification for racial separation. While part of the white supremacy movement is not visible to the public, other elements display racially-themed crosses at a state capitol and participate in state adopt-a-highway litter programs. This background provides context for my research question and findings.

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The NLRB should revise its speech doctrine for representation elections to remove legal protection for racist speech that meets the standard for hostile work environment under Title VII. In particular, the NLRB should apply Harris v. Forklift Systems, Inc. by considering the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Labor and employment law should not be judicially segregated so that racist speech is protected under the NLRA while triggering liability under Title VII for employers.

But there is more to this research. When the NLRB tolerates racist speech in representation elections, this normalizes an atmosphere of union organizing or employer resistance to unionizing that was typical when white workers fought racial integration. Turning to strikes where replacements are hired, employers take advantage of economic inequality. This often means that Blacks, Hispanics, and immigrants are hired to break strikes by white employees. In this explosive environment, the NLRB takes an antiquated view that picketers should be legally protected when they resort to racist taunts and ridicule. Given that many strikes end with employers retaining replacement workers, the Board's current policy adds fuel to divisive employer strategy by affording legal protection to strikers who transmute an economic dispute into a racial confrontation.

My policy proposal is supported by empirical evidence showing that the NLRB ignores its own policy against racist speech in Sewell; and these findings align with a growing body of rulings from federal appeals courts. Critics of my proposal may complain that having a unity of speech policy between the NLRA and Title VII would create a civility code in representation elections. Elections, they may argue, should be free-wheeling, uncensored forums for all viewpoints. This would miss the point, however, that a workplace election is not the same as an election for public office. While a racist can be elected as president, a union or employer cannot run on a platform of white separatism or racial preference without creating liability under Title VII. A free speech approach would also overlook the fact that mere epithets and stray remarks do not constitute verbal harassment under Title VII. Instead, speech must be sufficiently severe or pervasive as to alter conditions of employment.

Other critics may point out that employers already have a psychological advantage over union organizers because they can hold captive audience speeches that sow fear and anxiety over losing jobs if employees elect a union as a bargaining agent. Why shouldn't a union organizer, or union-busting management consultant, be able to tap into employee anxieties over immigration and race? My study answers this question by proposing Title VII's harassment standard, which has been accepted without significant controversy for over twenty years. If a union organizer or management consultant cannot hang nooses or use racial epithets in their own employment relationship without facing legal consequences, why should their campaign speeches that use or lead to these incitements be protected under the NLRA? My proposal not only limits the worst type of union election speech, but would focus campaigns on economics and the benefits and drawbacks of having union representation. Without making this policy change, the NLRA will shield racist grievances by employees and race-baiting by employers, opening the door to re-segregating the American workplace.

Michael H. LeRoy is a professor in the School of Labor and Employment Relations and the College of Law at University of Illinois Urbana-Champaign.