expressing concern about a Board decision indicating that “it is perfectly acceptable to use the most offensive and derogatory racial or sexual epithets, so long as those using such language are engaged in union organizing or efforts to vindicate protected labor activity”
How later courts described this case
- expressing concern about a Board decision indicating that “it is perfectly acceptable to use the most offensive and derogatory racial or sexual epithets, so long as those using such language are engaged in union organizing or efforts to vindicate protected labor activity”
- noting that, in considering whether employee engaged in protected activity loses protection due to opprobrious conduct, NLRB must consider the nature of the outburst as well as other relevant factors
- stating that the step two inquiry is a de minimis screening device to 27 dispose of groundless claims
- noting that NLRB may not “cavalierly” declare policies facially invalid without any supporting evidence, particularly where there are legitimate business purposes for the rule
Written by the judges who cited it.
The opinion
SILBERMAN, Senior Circuit Judge, concurring:
I concur in the majority’s opinion with respect to “abusive and threatening language” because I agree that it is absurd for the Board to hold that an employer who bans that sort of language — even though the ban has never been implemented in an antiunion fashion nor in a manner that could be thought to interfere with organizational efforts — per se violates § 8(a)(1). This charge was an obvious gimmick (fashioned well after the election contest period ended) designed to overturn the election.