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).

Whew. I quoted the entire section for full effect. It is important to note that this ALJ decision was issued in June 2017 – certainly, tone deaf in light of current climates.

While the ALJ’s decision was vacated, the NLRB took the extra step of ordering remand for a new trial but with a newly assigned judge. The NLRB went as far to explain that reassignment was necessary because “this an unusual case where the judge relied on inappropriate bases to assess credibility and intertwined those bases with other legitimate considerations”. In short, the NLRB just could not let the ALJ’s decision stand on the record without some formal rebuke.

On the one hand, this decision could be the result of an isolated situation where one ALJ stepped too far. On the other hand, this decision was issued five (5) days after the NLRB General Counsel, Peter Robb, issued the Google Advice Memo (discussed here) which justified the termination of an employee for crossing the line into sexual harassment while complaining about Google’s diversity practices. The close timing the Google Memo and this decision is uncanny – raising some questions on the primacy of pro-union policy over other employment rights.

Key takeaways:

  1. Although no formal proposition of law was announced, the NLRB is undoubtedly adopting a very strong cultural position on gender stereotypes and evidentiary standards concerning sexual harassment. Notably, the primary targets in this decision are not the employer but the union through DFR charges and the NLRB’s administrative law judges. The union world (fairly or unfairly) is still largely male dominated. Women may now have an easier opportunity to raise claims against unions which has in large part been male dominated.
  2. In the same way that gender discrimination played into the DFR charge, the question is whether there will be more cases where gender discrimination and harassment will play a significant role in charges against employers. On a macro level, there is some debate as to whether (or the degree to which) activity under other employment statutes are appropriate for the NLRB’s jurisdiction. At the very least, employers can expect a much more gender-sensitive approach by the NRLB’s enforcement staff and administrative law judiciary.
  3. Last – is this a direct shot at unions and the institutional staff/judges at the NLRB? Some employers (fairly or unfairly) complain that unions and the NLRB staff maintain too cozy of a relationship. Pro-union advocates have quietly bemoaned the Google Memo’s legal framework because it utilizes the balancing test announced in the The Boeing Company (NLRB 2017) which rejected the union/employee friendly test in Lutheran Heritage (NLRB 2004). Many unions have a real vulnerability on gender and race discrimination issues. This is an issue that the NLRB can challenge unions while gaining public support for its efforts.