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The Tension Between the NLRA, the EEOC, and Other Federal and State Employment Laws: The Union Perspective

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Introduction

Many labor and employment lawyers have encountered circumstances presenting tensions between employees' National Labor Relations Act (NLRA or Act) Section 71 rights and another law. The other law often raises the specter of employer liability to additional employees, individuals, or entities. Here are some examples:

* While picketing outside the employer's place of business, a locked-out employee makes racially offensive comments to or about replacement workers.2

* An employee in a non-union workplace circulates a letter to co-workers and managers, complaining that the employer's diversity policy and other policies unfairly benefit women, minorities, and liberals, while disfavoring white men and conservative viewpoints. The letter goes viral and causes outrage inside and outside the company.3

* Just before a union certification election, an employee vents frustration with a manager in a Facebook post filled with profanity and insulting the manager's mother and family. Because the Facebook page is public, it is visible not only to co-worker Facebook friends but to all who access the page.4

* An employee in a healthcare facility, in a disciplinary proceeding, views, prints, and submits protected health information about a patient to rebut the employer's allegations of misconduct.5

How do employees, unions, employers, and government agencies navigate situations like these that implicate multiple areas of law? If a potential conflict exists between the NLRA and Title VII of the Civil Rights Act of 1964 (Title VII) or between the NLRA and the Health Insurance Portability and Accountability Act (HIPAA),6 can the parties comply with all relevant laws? How are key players to know which source of law to follow? Who decides?

Some of the respective key players may argue as follows (using only one of the situations as an example):

Employee: "I should have the right to voice my opinion or thoughts on the subject of...