By K. Phillip Tadlock

In NLRB v. Arkema, Inc., the Fifth Circuit Court of Appeals recently dealt the Board a setback, finding that the employer (Arkema) did not violate the National Labor Relations Act when it disciplined a union-supporter for threatening another employee before an election and when it distributed an anti-harassment reminder to its employees. The Court accordingly refused to enforce the NLRB’s order to the contrary.

Before 2008, the United Steelworkers of America represented a bargaining unit of 35 employees at Arkema’s Houston plant. In April 2008, a campaign to decertify the union began, and, in August, a secret-ballot election was held. Employees voted to decertify the Union by a vote of 18-17.

Prior to the decertification election, a male union-supporter at the plant approached one of the facility’s female employees and began talking to her about the union’s need for her support. The female employee depended on the physical help of her male counterparts to perform her job duties and she claimed that the union-supporter “threatened that male union employees would not come to [her] aid in an emergency if she did not support the union in the election.” She complained to management about this threat and the male employee was disciplined. Shortly thereafter, Arkema’s Plant Manager sent out an email advising employees of their right not to be harassed or punished based on their stance towards the union and advising employees to report any violations of these rights to the NLRB’s Houston office.  

On August 19, the Union filed an objection to the election results along with other unfair labor practice charges. An Administrative Law Judge found that the Company’s actions in disciplining the male union supporter and sending out the anti-harassment memorandum had violated the NLRA. Moreover, the ALJ determined that, because the violations took place before the decertification election, the election was tainted and its results should be invalidated. The Board subsequently affirmed the ALJ’s findings and applied to the Fifth Circuit for enforcement of its order.

The Fifth Circuit flatly disagreed with each position taken by the Board and the General Counsel.  As an initial matter, the court rejected the Board’s decision that Arkema had violated section 8(a)(1) of the Act by disciplining the union-supporter who made threats to a co-worker.  The Court found that the employee’s conduct “exceeded persuasion—he sought to threaten and intimidate [the female employee.] His own testimony verifies that he intended to communicate to her that he would withdraw the help on which she depended to do her job [if she did not support the union].” Accordingly, the Court found that these “threats do not fall under the protection of the Act and are subject to employer-discipline.” 

In addition, the Fifth Circuit held that Arkema did not violate the Act by sending out an e-mail reminding employees of the Company’s anti-harassment policies.  The Court disagreed that employees would interpret this e-mail as prohibiting protected activity.  Rather, it found that an employer has the right to assure employees that it will not allow them to be threatened by anyone.  The Court was further reassured that the memo was lawful because it was directed to all employees and not solely focused on reporting against those employees who were union advocates. 

Because the Court found that these pre-election activities did not violate the Act, it concluded there was no basis to overturn the election results.  This decision provides further support for employers to appeal unfavorable Board rulings where they believe the Board has overreached.  The more favorable law of a Circuit Court of Appeals, and the opportunity to have a panel of federal judges examine evidence from a different perspective, may result in having adverse Board rulings rendered unenforceable.