July 30, 2020; Bloomberg Quint
As if employers in the US did not have enough rights, a National Labor Relations Board (NLRB) ruling issued last month gives employers “more latitude to fire employees who speak up about harassment and discrimination,” report Josh Eidelson and Hassan Kanu in Bloomberg Quint.
The United States is one of a few counties to have “at-will” employment. In most countries outside the US, employers must offer a work-related reason for dismissal, even in nonunion workplaces. As Eidelson and Kanu point out, US employers “can already legally terminate people for almost any reason, including what they say at work.” Historically, there has been an exception carved out if the worker in question is protesting unfair workplace conditions. But now, thanks to a unanimous ruling by three appointees of President Donald Trump to the National Labor Relations Board (NLRB), “companies have wider legal authority to axe those employees, too.”
The case in question involves the punishment of a Black employee at General Motors (GM), who alleges he was speaking up about discriminatory behavior.
As Eidelson and Kanu explain:
In 2017, GM suspended Charles Robinson, a Black electrician and union representative at a Kansas City plant, after he allegedly referred to a manager as “master,” using what a supervisor referred to as a “southern slave voice.” Robinson, who brought claims to the NLRB challenging this suspension and others, says he was highlighting the inappropriate conduct of a company official who reprimanded him for speaking too loudly.
“The way they were talking to me was racist,” he said in an interview with Bloomberg News. “They always made me out like I was threatening and intimidating them in meetings because I’m Black, and because of my size.”
In a filing in the case, GM says it disciplined Robinson for his “racially hostile and personal ad hominem attacks.”
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Eidelson and Kanu note that past precedent had found workers were legally protected when they had used derogatory language while speaking up against workplace
conditions, especially if provoked by management’s misconduct. Now, they explain, companies “have the green light to discipline remarks they deem offensive as long as the government can’t prove management was motivated by hostility towards protesting or organizing.”
As for Robinson, his claim will now be reconsidered under these far less permissive guidelines.
In fine Orwellian fashion, after the ruling, the company said in an email statement that, “GM stands against harassment and discrimination. This NLRB decision is a step towards more inclusive workplaces.”
Of course, in June, GM pledged $10 million to support organizations that promote inclusion and racial justice, according to Black Enterprise. CEO Mary Barra also issued a public statement condemning the murders of George Floyd, Ahmaud Arbery, and Breonna Taylor. In the same statement, she wrote that she was “commissioning an Inclusion Advisory Board (IAB) of both internal and external leaders, which I will chair.”
Yet when it comes to workers’ rights to contest management decisions, it would appear inclusion at GM only goes so far.
Commenting on the NLRB’s ruling, University of Wyoming employment law professor Michael Duff observes that when managers get to call balls and strikes as to what constitutes incivility, employees tend to lose out. Duff may be a law professor now, but he worked for 11 years as an airline ramp service worker before deciding to go to law school, so he has a well-earned sense of workplace dynamics.
The managers “are in control,” Duff points out. “And man, you don’t raise your voice to the master.”—Steve Dubb
