Although the D.C. Circuit issued two opinions this week, it really only addressed one question: What exactly is fair game for an employee to do during a labor dispute? And the answer? It can be hard to say—so ask the NLRB!

Consider first Consolidated Communications, Inc. v. NLRB. Here, the Court (per Judge Millett, joined by Judges Tatel and Brown) addressed employee discipline following a strike. During a 2012 strike, Consolidated Communications “continued to operate through the use of replacement workers, out-of-state employees, and managers.” The strike was contentious. As it progressed, “Consolidated received written and verbal reports of six specific incidents of alleged misconduct by strikers Michael Maxwell, Patricia Hudson, Brenda Weaver, and Eric Williamson.” Once the strike was over, Consolidated met individually with each of them, and then “suspended all four employees indefinitely without pay pending investigation of the allegations. Several days later, Consolidated confirmed two-day suspensions for Maxwell and Williamson and discharged Hudson and Weaver.”

Here is a rundown of what each employee was accused of doing, the company’s response, the NLRB’s ruling, and the ultimate judicial determination (note, there is more going on in this case, but this should give you the gist of it; note further that Weaver’s dispute settled):

Maxwell: Maxwell allegedly blocked a van from leaving the facility and “[a]t some point, Maxwell’s elbow or forearm made contact with the hood of the van”; he also allegedly “gave Flood the middle finger and uttered its associated obscenity.”

• “The Board determined that Flood hit Maxwell with the van, causing Maxwell to fall forward and brace himself by placing his forearm on the hood.” The D.C. Circuit deferred to the agency because “it was not ‘hopelessly incredible, self-contradictory, or patently unsupportable’ for the ALJ to credit Maxwell’s account and find that Flood hit him.”

Williamson: Williamson also supposedly hit a car leaving the facility. He says the car hit him. The next day, he also allegedly “looked towards [a non-striking female employee], grabbed his crotch, and ‘lifted up as a mean, hateful gesture.’ Williamson denied grabbing his crotch, claiming that he just yelled ‘scab’ ….” According to the company, Maxwell violated the company’s “‘handbook/workplace violence policy’” and the “’handbook/sexual harassment policy.’”

• The NLRB rejected Williamson’s suspension too. First, it determined that he did not intentionally hit the car. And second, although the Board “discredited Williamson’s testimony and found that he did engage in misconduct by grabbing his crotch and making an obscene gesture,” it “also held … that Williamson’s actions were not sufficiently egregious to warrant suspension.” The D.C. Circuit deferred to that conclusion too: “Given the rough-and-tumble nature of picket lines and the fleeting nature of Williamson’s offensive misconduct, we cannot conclude that the Board erred in its assessment of the objective impact of this particular conduct in this instance.”

Hudson: “In one day, Hudson purportedly participated in three back-to-back incidents of driving her car in a manner that obstructed and trapped vehicles in which non-striking workers were driving.” The most important one is this: She may have driven in front of a company truck on the highway, “immediately slowed down,” and then tried to prevent it from passing. The company concluded that such behavior was “harassing, intimidating, threatening and reckless behavior’ towards nonstrikers with ‘extremely dangerous vehicular activity on the strike line and on the public roads.’”

• The NLRB “ruled that Hudson did not engage in any misconduct that would warrant discharge.” Although accepting the Board’s conclusions as to two of the incidents, the D.C. Circuit disagreed as to the third—the one involving the highway. “The Board decision stressed the ‘absence of violence.’ But that asked the wrong question. The legal test to be applied is straightforwardly whether the striker’s conduct, taken in context, ‘reasonably tended to intimidate or coerce any nonstrikers.’”

There is, however, more to the case. Judge Millett, who authored the majority opinion, also concurred. Her separate opinion is important. Here is a sample:

I write separately, though, to convey my substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially disparaging conduct that Board decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.

After detailing some of the ghastly conduct and words “winked away” by the NLRB over the years, Millett explained that while “there is no question that Emily Post rules do not apply to a strike,” “conduct of a sexually or racially demeaning and degrading nature” should not be tolerated. After all, “calling a female co-worker a ‘whore’ or exposing one’s genitals to her is not even remotely a ‘normal outgrowth[]’ of strike-related emotions.” “It will often be quite hard for a woman or minority who has been on the receiving end of a spew of gender or racial epithets—who has seen the darkest thoughts of a co-worker revealed in a deliberately humiliating tirade—to feel truly equal or safe working alongside that employee again.” Indeed, “it is 2016, and ‘boys will be boys’ should be just as forbidden on the picket line as it is on the assembly line.” In short: The law of the jungle may let most anything go. But we don’t live in the jungle—and that is true for employees too.

The second case, DirecTV, Inc. v. NLRB, is similar to the first. This case (per Judge Srinivasan, joined by Judge Rogers) also addresses what an employer can do to an employee for conduct relating to labor relations. Once again, the Board ruled in favor of the union. And once again, the D.C. Circuit deferred to the agency. The specific issue here is just how far an employee can go to “publicly criticize their company in an attempt to draw support in an ongoing labor dispute.” An employee can be “disloyal and disparaging of the employer in some measure,” but not if the “the employees’ appeal rises to the level of flagrant disloyalty, wholly incommensurate with any employment-related grievance, or if the employees make maliciously untrue statements about their employer.” It appears that the D.C. Circuit will give the NLRB a great deal of deference when it comes to drawing the line.

Long story short (and I mean long and short; the majority opinion is 40 pages), some employees charged with trying to get customers to connect their television receivers to landline phones stated during a television interview that “if we don’t lie to the customers, we get back charged for it,” and that the company says to “tell the customer whatever you have to tell them,” even that “if these phones are not connected the receiver will blow up.” It is not true, however, that receivers will “blow up”; everyone agrees that the supervisor made that statement to the employees as a joke.

The ALJ determined that such public statements crossed the line; the NLRB disagreed. For instance, as to “blow up,” “the Board determined that, even as a joke, the supervisor’s comment ‘underscored th[e] message’ that the technicians should mislead customers if necessary, ‘as it undoubtedly was meant to do.’” The D.C. Circuit concluded that the Board’s decision “is at least a reasonable conclusion about the comment given the context in which it was made” and “insofar as the companies argue that the technician’s statement rose to the level of being maliciously untrue simply because he did not expressly explain that the ‘blow up’ comment was originally made in jest, we find no reversible error in the Board’s decision. To the extent the comment was not self-evidently hyperbolic, the technician’s failure to spell that out did not necessarily render his repetition of the comment maliciously untrue.” To be sure, if the Board would have gone the other way, the Court might have too, but as it is, the Board’s decision stands.

Judge Brown dissented—vigorously (her dissent is 28 pages). “There are limits to how far employees may go in pursuit of bargaining advantage.” Here, rather than telling the truth, “these technicians chose instead to feed the station a false, disparaging story they knew would trigger public outrage.” In particular, employees “soberly repeat[ed]” what everyone concedes was stated in jest “to a public audience without its context and as though it were a serious instruction.” And “instead of attempting to balance conflicting interests, the NLRB reacts like a pinball machine stuck on tilt; reflexively ensuring employers always lose a turn.” “Judicial review should mean more than batting cleanup for the administrative state.”

It is interesting to me that both Judges Millett and Brown, at bottom, are sounding the same theme: the NLRB should not be so quick to forgive everything that employees do in labor disputes. Even so, with the exception of that one incident in Consolidated Communications, in both cases, the Board won.

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* To be honest, I’m not a fan of Upton Sinclair’s The Jungle. For one thing, it may not be entirely accurate. For instance, per Google, it appears that President Theodore Roosevelt did not think so: “I have an utter contempt for him. He is hysterical, unbalanced, and untruthful. Three-fourths of the things he said were absolute falsehoods. For some of the remainder there was only a basis of truth.” That said, I don’t always demand scientific accuracy in novels. No, my main gripe is that it is poorly written—“[t]here’s better prose in the average issue of Consumer Reports than in most Upton Sinclair novels.” For what it is worth, I prefer Elizabeth Gaskell’s North and South, which also addresses labor relations.

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