The National Labor Relations Board (“NLRB”) ruled that Illinois Consolidated Telephone Co. violated the National Labor Relations Act when it suspended striking switchman Eric Walters for making an obscene gesture. Specifically, Walters grabbed his crotch in a sexual gesture aimed at an employee crossing the picket line. While the Labor Board did find credible evidence that Walters made the gesture, it concluded that the isolated event was not enough to constitute sexual harassment and as such was insufficient to result in a two-day suspension. Interestingly, the Administrative Law Judge acknowledged that the gesture was “totally uncalled for, and very unpleasant,” but he went on to conclude “it is difficult to see how it could have been perceived as an implied threat of violence or even future mistreatment (whatever that means) or have discouraged [the other employee] from continuing to report to work during the strike.”
The decision is interesting not just because it underscores the anything goes nature of permissible behavior on a picket line, but because it applies a different standard for what constitutes sanctionable sexually oriented behavior when it occurs during a labor dispute. Needless to say, the NLRB’s sister agency, the Equal Employment Opportunity Commission would no doubt take a much different of view of employers who decline to sanction individuals who grab their crotches or make any other sexually demeaning gestures. To the extent the NLRB applies this kind of standard to on-line speech regarding employment controversies, we may see a further reduction in an employer’s ability to protect employees from boorish behavior in social media.