The U.S. Chamber, Equal Employment Advisory Council, and NFIB Small Business Legal Center urged the Eighth Circuit to reverse the National Labor Relations Board’s (NLRB) position on what constitutes an unfair labor practice. In this case, a company terminated an employee based on its determination that the employee engaged in racist and offensive conduct in violation of the company’s anti-harassment policy; the offensive remarks occurred during picketing activities. The NLRB alleged that discharge of the employee amounted to an unlawful labor practice under the National Labor Relations Act, even though the remarks violated both the company’s nondiscrimination policies and the union’s conduct rules.
The coalition filed an amicus brief explaining how the NLRB’s decision is incompatible with the purpose and underlying aims of federal anti-discrimination law, and that employers forced to choose between compliance with current NLRB policy and federal EEO laws face significant legal, organizational, and reputational risks. Furthermore, the brief argued that the conduct raised in this case was not at all protected, given that the remarks cannot reasonably be viewed as advancing the purpose of collective bargaining.
Rae T. Vann of NT Lakis, LLP served as counsel for the amici in this case.