This post was written by Michael D. Yim  and originally posted on Kelley Drye’s Labor Days Blog.

As we previously posted, gender discrimination issues have been a hot topic at the National Labor Relations Board (“NLRB”). Now, it seems the NLRB is even more on board the #metoo movement – but with a twist, sexual harassment by unions. On February 20, 2018, the NLRB in ILA Local 28 (Ceres Gulf, Inc.) (NLRB 2018) issued a very concise, but biting decision that vacated an administrative trial court’s decision dismissing a breach of duty of fair representation case against a union for discriminating and sexually harassing a female union member. The NLRB’s rationale – the ALJ’s “credibility determinations about the [female employee’s] claim were based on sex stereotypes and demonstrated bias.” Wow. Mic drop.

In Ceres Gulf, the union operated an exclusive hiring hall which referred employees for work and training (for certification for certain jobs) based on seniority roster. The employee alleged that she made multiple requests for training and referrals. But, instead of granting her request, the union officer in charge of administering the seniority roster subjected the employee to groping and sexual propositions on at least 10 occasions. The ALJ rejected the employee’s version of the events because – wait for it:

It is simply implausible that [the employee who] appeared to be a tough woman who performs stevedoring work on the docks and previously drove a truck in Iraq, would have meekly allowed [the union officer] to harass and assault her a whopping 10 times, without an utterance. It is even less plausible that she would have tolerated such egregious misconduct to preserve a job that only paid her less than $10,000 annually. It is still less plausible that a woman, who was empowered by having two relatives holding influential union positions … would have allowed [the union officer] to repeatedly violate her. It is also implausible that, if [the union officer] withheld training because she rejected his advances from 2010 to 2015, as she alleges, he would have then enrolled her for training in June 2015 after her rejection. It is also implausible that [the employee], who claims that she was too embarrassed to complain about sexual harassment, would have not opted to address her training problems by solely complaining about [the union officer] other reportedly less embarrassing comments (e.g., his alleged comment that, as a driver, she did not require training, or that he did not want to train her to perform grimy jobs). Continue Reading The NLRB Joins the #MeToo Movement

This post was originally written by Barbara E. Hoey and posted on Kelley Drye’s Labor Days Blog.

Earlier, we blogged about James Damore, an engineer at Google who was terminated for his memo, which openly expressed his belief that women were not “biologically suited” for certain types of positions and criticism of the company’s efforts to diversify its work force.

The engineer challenged his termination by filing a charge with the National Labor Relations Board and launched a media offensive arguing that he was fired for his ‘conservative’ views.

I am pleased to report that the NLRB’s general counsel issued an advice memorandum affirming that Google was indeed acting lawfully when it terminated Mr. Damore. Among the conclusions, the NLRB General Counsel Jayme Sophir found that any employer must be given “particular deference” when it is acting to promote and comply with state and federal employment laws, and to promote diversity in their workplaces.  Thus, “employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace’, rather than waiting until an actionable hostile workplace has been created before taking action.”

The general counsel also confirmed that the Board has already found that employee conduct, which “significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination” it is not protected.

Using that rationale, the Board concluded that Mr. Damore’s “use of stereotypes bases on purported biological differences between women and men should not be treated differently than the types of conduct the Board found unprotected in these cases,“ as such comments “were likely to cause serious dissension and disruption in the workplace.”  Therefore, while “much of” the memorandum may have been protected, his statements about “biological differences  between the sexes were so harmful, discriminatory and disruptive as to be unprotected”.

The Board also noted that Google “carefully tailored” its message to explain Mr. Damore’s termination and to ensure employees were aware of their right to engage in protected speech.

The Takeaway for Employers – This decision confirms that, while it may be fine, there is a line which employees cannot cross when they are “protesting” employer actions with which they disagree. Employees may not engage in speech in the workplace (verbally, in written or electronic form), which is openly discriminatory, or which is likely to cause dissension or disruption in the workplace. This should be empowering to all employers. While employers certainly need to be careful when disciplining or discharging an employee under these circumstances, they do have the right to set some reasonable limits on what type of speech will be tolerated in the workplace

This post was originally written by Michael D. Yim  and posted on Kelley Drye’s Labor Days Blog.

While President Donald Trump is not known for a deliberate approach, the long-anticipated shifts in labor law and policy is starting to take shape in an efficient and measured form. The National Labor Relations Board (“NLRB” or the “Board”) closed out 2017 with several key decisions overturning significant pro-unions policies. These decisions came on the heels of newly minted NLRB General Counsel Peter Robb’s “Mandatory Submissions to Advice” Memo (the “Memo”) directing regional offices to defer to the General Counsel on certain hot-button labor enforcement actions – a clear signal that many more Obama-era policies will be challenged and likely reversed.

It took little time for both the NLRB and the NLRB’s GC under the Trump administration to get started – contrasting the difficulties the Obama Administration faced in confirming appointees to the NLRB. But, the Trump administration’s unusual patience in ensuring that its pieces were in place has paid off. Now that the ball is rolling, we can expect to continue to take forceful and efficient action in the administration’s second year.

Let’s take a look at what to expect for 2018:

John Ring – The Next (Likely) NLRB Tiebreaker

Former NRLB Chairman Philip Miscimarra’s term ended on December 16, 2017 with a bang. With a full majority of Republican NLRB appointees, Chairman Miscimarra, on his last days, pushed through profound reversals of various Board policies (discussed below) that haunted the business community. Promptly replacing Miscimarra to hold a majority will be critical to implementing changes to federal labor law and policy. On January 12, 2018, management attorney John Ring was officially nominated to replace Miscimarra. A Senate Committee hearing and vote is expected to occur on February 14, 2018.

Once cleared through Committee, a final Senate vote is likely to follow within weeks to allow Ring to pick up where Miscimarra left off. Based on recent events, many expect that most Obama-era NLRB decisions will be reversed by the end of 2018. Further, the NLRB will be expected to vote on eliminating the “quickie election” rule, which significantly limited the time employers had to defend against union election campaigns. The next Obama appointed Board member’s term will expire in August 2018, positioning a 4-1 Republican-appointed majority before any Senate elections. At that point, the question will be whether the NLRB will look to set bold new policy or be content with reversing Obama-era policies to traditional standards.

Peter Robb’s Enforcement Regime in Full Swing

On December 1, 2017, then-newly confirmed NLRB General Counsel Peter Robb issued the Memo which identified over a dozen recent NLRB decisions as targets for such policy scrutiny, as well as rescinded many other internal enforcement policy memos. Within weeks of issuance, three major Obama-era NLRB decisions were reversed. The Memo initially appeared to be an aspirational wish list of sorts. Now, it can be viewed as the playbook for the imminent unwinding of Obama-era policies.

Robb’s vision, however, does not appear limited to policy challenges on the highest levels. Recent news reports revealed that Robb is also looking to shake-up the grass-roots organizational structure of the NLRB’s enforcement units by adding new layers of management to oversee each regional office. The directors of the regional offices have been viewed (fairly or not) as hostile to business. Regional directors wielded substantial discretionary power at the grassroots level to implement or enforce policy. Under the rumored restructuring, regional directors will lose such discretion to issue complaints and dismiss unfair labor practice charges, or how to manage union representation cases. Those determinations would be made by those closer to the General Counsel’s office than on the local level.

If an actual proposal for restructuring is announced, it will likely require public “notice and comment,” as well as approval from the NLRB members. If approved, this restructuring will certainly expedite implementation of any new labor policies or administrative priorities at the grassroots levels. Even if no proposal is made, Peter Robb’s message to enforcement staff is clear – implementation of Robb’s agenda and new NLRB decisions should be swift. We can expect most, if not all, of the subject areas in the Memo to be addressed and reversed by the end of 2018. If restructuring occurs sooner rather than later, implementing new Board law on the ground level will be instantaneous. Continue Reading 2018 Outlook on Federal Labor Laws

This post was written by Barbara E. Hoey and Steven R. Nevolis and originally posted on Kelley Drye’s Labor Days Blog.

The blogs and networks have been buzzing over the past few days with news that a senior software engineer at Google – James Damore – had taken it upon himself to write and post on an internal Google mailing list a ten page memo, explaining his theory on why Google’s efforts to diversify its workforce were not working. In his words, Google’s “politically correct mononculture” had reached the point where efforts to create diversity by hiring and promoting more women (and other under-represented groups) was actually hurting the company.  Implicit in his criticism was what seemed like an undercurrent that men were somehow better suited than women for many tech jobs, and that Google was hiring or promoting women over men, even when the woman might not be the best person for the role.

In the course of this memo, Damore made a number of openly sexist and stereotypical comments about women, which many employees of both sexes took great offense to.  Most disturbing was his core view, that the reason women did not succeed in tech jobs was “biological”.

For instance, he opined:

  • that women were more apt to have a stronger interest in “people rather than things” and that tech was an industry which focused on things
  • that women had a higher level of “agreeableness”, which is why they had a harder time negotiating salary
  • that women had “higher anxiety/lower stress tolerance”

Finally, he theorized that the reason there were not more women in leadership roles at tech companies was because they did not have the same “drive for status” or to succeed as men did.

Damore also was very critical and dismissive of Google’s diversity programs, training, and other company initiatives aimed at helping women and diverse employees advance.

The memo of course went viral, and was soon circulating outside of Google and all over the world.

Putting aside the fact that Damore’s views were perpetuating stereotypes and that any dialogue with a woman who has risen to a leadership role or managed large projects at work, while also managing a home and family will tell him – a woman’s ability to multi-task, handle stress, and desire for success knows no bounds. However, the immediate question that Google’s senior management had to confront was how to react to this memo. Many employees, male and female, were greatly offended by the memo and felt that it did not accurately reflect the opinions and culture of most people at the company. More fundamentally, many felt that this memo was openly hostile to, and advanced stereotypical views of, women at Google. It also perpetuated the myths and challenges that tech companies like Google face, as they work on bringing more women into senior positions. Moreover, as many who follow this area know, the Department of Labor is currently suing Google for salary discrimination, and there have been rumors of class actions looming against companies in this industry. See Anita Hill, Class Actions Could Fight Discrimination in Tech, THE NEW YORK TIMES (Aug. 8, 2017). Given this backdrop, the company needed a strong response.

Continue Reading Is Misogyny Protected Activity?