By: Tiffany Tran, Esq.

Seyfarth Synopsis: In another signal that the Board may overturn the Obama Board’s decision in Purple Communications allowing employees to use their employer’s email systems to communicate about wages, hours, working conditions and union issues, the Board recently published a letter reiterating its decision to reconsider Purple Communications and invited comment from the public on the standard the Board should apply in these cases.

Under Purple Communications, 361 NLRB 1050 (2014), employees who have access to their employer’s email system for work-related purposes have a presumptive right to use that system for Section 7 protected communications regarding wages, hours, working conditions and union issues on nonworking time. Purple Communications overturned the Board’s decision in Register Guard, 351 NLRB 1110 (2007), holding that employers may lawfully impose neutral restrictions on employees’ non-work-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity.

In December 2017, the newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. The memo cited Purple Communications as one of the cases the GC “might want to provide the Board with alternative analysis.” We previously blogged about the GC’s memo on this issue here.

Less than one year later, in August 2018, the Board announced, and Seyfarth blogged about it here, that it would invite briefing on whether it should “adhere to, modify, or overrule Purple Communications.” The Board made this announcement in Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, a pending case before the board that directly applied Purple Communications. In Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, the Administrative Law Judge had found that the employer’s policy prohibiting the use of its email systems to send non-business communications violated Section 8(a)(1) of the NLRA under Purple Communications. The employer excepted to the decision and asked the Board to overrule Purple Communications. Rather than immediately issue a decision, the Board invited the public to comment on this issue.

After extending the deadline to file briefs until October 5, 2018, nineteen amicus briefs were filed from various unions, senators, and interested groups on both sides of the issues. Notably, the GC submitted a brief urging the Board to overrule Purple Communications and return to the holding of Register Guard. The GC further urged that exceptions should be made on a case-by-case basis where the Board determines that employees are unable to communicate in any way other than through the employer’s email system. Finally, the GC argued that Register Guard should apply to other employer-owned computer resources not made available by the employer to the public.

And while five Democrat Senators recently sent a letter to NLRB Chairman John Ring expressing concern over the Board’s invitation to file briefing on the Purple Communications standard, Chairman Ring’s response letter reaffirmed the Board’s decision to reconsider Purple Communications and stated “the Board requested briefing from all interested parties to ensure we are fully informed of the arguments on all sides.”

Although the Board has yet to issue its decision, the Board’s and GC’s actions appear to signal that employers may continue to have hope about winning this battle.

 By: Bryan R. Bienias, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December.  Click here, here, here, here, here, here, here, here, here, here, here, here & here to find prior posts.

While the weather outside may be frightful (for some), the agenda recently set forth by NLRB General Counsel Robb in GC 18-02 is sure to make some employers delightful this holiday season. In this installment, we will focus on the GC’s targeting of the Obama Board’s controversial decisions imposing the duty to bargain over discipline of newly unionized employees, as well as the GC’s preservation of longstanding Board doctrines governing employer campaign communications and withdrawing recognition of unpopular unions.

Out with the Old: The End of Alan Ritchey?

As we discussed here, the Board in Total Security Management, 364 NLRB No. 106 (Aug. 26, 2016) not only reaffirmed the Board’s employer-maligned Alan Ritchey decision, which required employers to bargain over discretionary discipline issued to newly organized employees prior to execution of a first contract, but also mandated prospective make-whole relief including reinstatement and back pay for future violations.

Total Security Management went even further and held that such make-whole relief would be subject to an employer’s “for cause” affirmative defense, placing the ultimate burden of persuasion on the employer to show at the compliance phase that (1) the employee engaged in misconduct; (2) the misconduct was the reason for the suspension or discharge; and (3) that the employee would have received the same discipline regardless of any disparate treatment or reasons for leniency shown by the charging party.

With GC 18-02’s listing of Total Security Management as one Board decision that “might support issuance of complaint, but where we also might want to provide the Board with an alternative analysis,” GC Robb sends a gift-wrapped message to employers that, much like 2017, Alan Ritchey’s and Total Security Management’s days may be numbered.  However, employers should continue treading carefully when considering discipline for newly unionized employees. While the Board’s reversal of these precedents are on the agenda, they remain the law of the land.

In with the . . . Old?: Preserving the Levitz Furniture and Tri-Cast Doctrines

GC Robb’s memo also expressly rescinds former General Counsel Peter Griffin’s GC 16-03, which implored the Board to overturn the framework set forth in Levitz Furniture, 333 NLRB 717, 717 (2001), which allows employers to unilaterally withdraw recognition from a union based on objective evidence that the union has lost majority support (i.e., employee signatures).  Griffin advocated for a new rule requiring a Board-sanctioned election before an employer could lawfully withdraw recognition.  With Robb’s rescinding of GC 16-03, employers can sleep somewhat easier in the year(s) ahead knowing that the Levitz framework will remain intact and that the option for employees to quickly rid themselves of an unpopular union will not be impeded through a long and costly election process.

In addition, GC 18-02 announces Robb’s abandonment of GC Griffin’s initiative to overturn the Board’s Tri-cast doctrine regarding the legality of employer statements to employees during organizing campaigns.  In Tri-Cast, 274 NLRB 377 (1985), the Board held that an employer could lawfully inform employees during a union campaign that they will not be able to discuss matters directly with management if they vote for the union and that such statements could not reasonably be characterized as retaliatory threats.

While the Obama Board had indicated its willingness to eventually overturn Tri-Cast, GC 18-02 effectively ensures that the current Board will maintain the status quo in the new year.

Should you have any questions about GC 18-02 or any labor relations issue, please contact the author, your Seyfarth attorney, or any member of the Labor & Employee Relations Team.

  By: Howard M. Wexler, Esq. and Skelly Harper, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, here, here, here, & here to find prior posts.

In GC Memo 18-02, the new General Counsel announced that his office will try and “remedy” the approach to remedies taken during the Obama presidency. The GC may seek to provide the Board with “alternative analysis” in two Obama Board decisions and has rescinded several initiatives of the prior GC.

Approach to Settlements. Effectively immediately, the GC has reversed course on two issues related to settlements.  He has rescinded Memorandum GC 13-02, which allowed front pay to be part of Board settlements.  Previously, front pay could only be included in “non-Board” side letters.  Perhaps more importantly, he put an end to the requirement set forth in Memorandum GC 11-04, which required the inclusion of certain default language in all informal settlement agreements and all compliance settlement agreements. That change should allow charged parties to reach reasonable settlements more easily.

Interim Employment Expenses. The first Obama Board decision addressed by the GC concerns the controversial Board’s backpay formula set forth in King Soopers, 364 NLRB No. 93 (2016). Previously, those who were unable to find interim employment received no reimbursement for their reasonable search-for-work and interim expenses. The Obama Board found that this was “inadequate to fulfill its fundamental charge to make victims whole following an unlawful termination.” As such, King Soopers held that the Board would compensate employees for reasonable search-for-work and interim employment expenses, even when interim earnings were nonexistent or less than those expenses.

Recoupment of Union Dues. The GC also highlighted the approach to union dues set forth in Alamo Rent-a-Car, 362 NLRB No. 135 (2015). In that case, the Obama Board held that an employer found guilty of violating the Act must pay dues owed the union from its own funds, without recouping the amount from its employees and with interest. This represented a departure from Board precedent, which had allowed employers to recoup from employees any dues that the employer had to pay the union.

Backpay for Salts. Finally, the new GC rescinded an initiative of the prior GC related to salts. During the Obama presidency, the prior GC had an initiative to overturn the burden of proof set forth in Oil Capital  349 NLRB 1348 (2007), and require employers to demonstrate that a salt would not have remained with the employer for the duration of the claimed backpay period.  In Oil Capital, which the GC will not seek to overturn, the Board eliminated the presumption of “indefinite employment” and required that the alleged discriminatee present affirmative evidence that he or she would have worked for the employer for the backpay period claimed.

By: John J. Toner, Esq.

Seyfarth Synopsis: In a decision issued late last week, The Boeing Company, 365 NLRB No. 154 (Boeing), the newly constituted “Trump” National Labor Relations Board (“Board”) announced that employers could once again maintain common sense rules regarding employee conduct at the workplace.

Of all the decisions issued in recent years by the previous Board, none was more baffling than those regarding an employer’s required standards of employee conduct contained in employee handbooks. These decisions were premised on a 13-year old decision in Lutheran Heritage Village-Livonia (Lutheran Heritage) which held that, in addition to an employer’s policy being found unlawful if it explicitly restricted protected, concerted activities under Section 7 of the National Labor Relations Act, a policy would also be found unlawful if :

  • employees would reasonably construe the language to prohibit Section 7 activity,
  • the rule was promulgated in response to union activity, or
  • the rule has been applied to restrict the exercise of Section 7 rights.

The Obama Board used the first test (how would employees “reasonably construe” the language of a policy) to invalidate numerous common sense policies, such as requiring employees not to engage in conduct that impedes “harmonious interactions or relationship” or prohibiting “abusive or threatening language to anyone on company premises.” The Board found these and other policies to be illegal without taking into account an employer’s legitimate justifications or the “real-world complexities” in a workplace.

To further complicate matters, the Obama Board sometimes found policies with the same objective (civility in the workplace) to be lawful. The byzantine nature of these decisions made it nearly impossible for an employer to maintain policies regarding employee conduct with any assurance that the Board would find the policies to be lawful.

In the Boeing decision, the Board majority (Chairman Miscimarra, and Members Emanuel and Kaplan), over a strong dissent (Members Pearce and McFerran), thankfully overruled the Lutheran Heritage “reasonably construe” standard and established a new test for evaluating whether a facially neutral policy, rule, or handbook provision, when reasonably interpreted, would interfere with employee Section 7 rights. Specifically, the Board in evaluating a policy will seek to strike a proper balance between (1) the nature and extent of the potential impact of the policy on employee Section 7 rights and (2) the employer’s legitimate justifications associated with the rule.

To provide greater clarity to all parties, the Board’s majority announced that, in the future, it will analyze the legality of workplace policies based on three categories:

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights, and thus no balancing of employee rights versus employer justification is warranted; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. The Board gave as an example under Category 3 a policy prohibiting employees from discussing wages or other working conditions.

The Board specifically highlighted as examples of policies that would be legal under Category 1, including policies requiring employees to foster “harmonious interactions and relationships” or “rules requiring employees to abide by basic standards of civility,” and overruled previous cases that held to the contrary.

To be sure, there will be some confusion and issues to be addressed as the newly-announced categories are applied to employee handbook policies, but what is certain is that employers can once again lawfully require that employees maintain a reasonable level of civility in the workplace.

 

 

  By: Kyllan Kershaw, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, & here to find prior posts.

While many employers were surprised by the Obama Board’s inability to overturn IBM Corp.,  341 NLRB 1288 (2004), and extend Weingarten rights to non-union employees, the Obama Board powerfully expanded the scope of Weingarten rights in a number of areas, including significantly diminishing a unionized-employer’s ability to conduct reasonable suspicion drug testing in Manhattan Beer Distributors, 362 NLRB No. 192 (2015).  In Manhattan Beer, the Obama Board majority ruled that a beer distributor violated the NLRA by terminating a unionized employee for refusing to take a drug test without first providing him with a reasonable opportunity to consult in person with an authorized union representative, despite the fact that the employee was able to consult with a union representative via telephone.  Member Johnson’s dissent outlines the numerous ways in which the decision substantially interferes with an employer’s interest in maintaining a safe and drug-free workplace.

The Obama Board likewise expanded Weingarten rights beyond any prior precedent in Howard Industries, Inc., 362 NLRB No. 35 (2015), broadening the range of permissible conduct by union representatives in Weingarten interviews to include allowing union representatives to assist witnesses by providing scripted answers.  In Fry’s Food Stores, 361 NLRB No. 140 (2015), the Obama Board bolstered Weingarten rights further by finding that Weingarten requires that an employee has the right to consult with a union representative not only during the investigatory interview but also before the interview, even without the employee requesting such a meeting.

Fortunately for employers, in GC Memo 18-02, the NLRB’s new General Counsel previews that the General Counsel’s office will seek to nip the Obama Board’s Weingarten overreach in the bud, requiring Regions to submit to the Division of Advice any matters involving the range of permissible conduct by union representatives in Weingarten interviews and matters involving the application of Weingarten in the drug-testing context.  The new General Counsel also rescinded the initiative to overturn IBM Corp. and extend Weingarten rights to non-union employees.

The General Counsel’s change in direction on Weingarten rights is certainly a gift to employers, but GC Memo 18-02 leaves one notable Weingarten decision on the nice list.  Specifically, the GC Memo fails to mention the Obama Board’s controversial decision in E.I. Dupont de Nemours & United Steel Workers Local 699 to allow dishonest employees to receive reinstatement with backpay if an employer violates his or her Weingarten rights, effectively receiving “get out of jail” free cards for any misconduct that occurs during an unlawful interview. 362 NLRB No. 98 (2015).  Alas, while GC Memo 18-02 previews many long-awaited gifts to employers, the Trump Board’s revisiting of E.I. Dupont remains on every unionized-employer’s holiday wish list.  Maybe next year.

By: Ashley Laken, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.

In GC Memo 18-02, the new General Counsel of the NLRB listed “Disparate treatment of represented employees during contract negotiations” as requiring submission to his Division of Advice for consideration before proceeding to issue a complaint in an unfair labor practice case, citing to the Obama Board’s decision in Arc Bridges, Inc., 362 NLRB No. 56 (2015). The new GC described Arc Bridges as “Finding unlawful the failure to give a company-wide wage increase to newly represented employees during initial bargaining, even where there was no regular, established annual increase and the employer was concerned that it would violate the Act if it unilaterally provided the increase to represented employees.” The GC Memo 18-02 suggests the GC may disagree with the Arc Bridges decision.

In Arc Bridges, while an employer was negotiating an initial collective bargaining agreement, it gave a 3% wage increase to all employees outside of the bargaining unit but did not provide any increase to bargaining unit employees. The Board found that the employer’s actions were unlawfully motivated and violated
Section 8(a)(3) of the NLRA. The Board observed that an employer can treat represented and unrepresented employees differently during the course of negotiations, so long as the disparate treatment is not unlawfully motivated.  The Board then proceeded to find that the employer’s decision to withhold the wage increase from union-represented employees was motivated by antiunion animus, and ordered the employer to retroactively pay each of the affected employees for the increase they would have received, plus interest compounded daily, plus compensation for any adverse tax consequences.

Then-Member Miscimarra vigorously dissented, reasoning that in his view, the evidence manifestly failed to support an inference of unlawful motivation. He also reasoned that even if the evidence showed otherwise, the employer had shown it would have withheld the increase for legitimate, nondiscriminatory reasons, which included preserving bargaining leverage and avoiding a Section 8(a)(5) charge.

Miscimarra observed that “Under the Board’s prevailing but mistaken view,” the General Counsel can show that protected conduct by employees was a motivating factor in an employer’s decision simply by showing generalized antiunion animus. Instead, Miscimarra observed, the General Counsel must establish a motivational link between the protected activity and the adverse employment action.

Miscimarra made these additional observations to support his view that the Board was mistaken:

  • It is important to recognize that it is not unlawful “antiunion motivation” when an employer desires to be more successful in union negotiations, and the Board has long held that employers can offer different benefits to represented and unrepresented groups of employees as part of its bargaining strategy.
  • Annual wage increases at the employer were not the status quo, and refraining from giving unit employees a wage increase while bargaining was ongoing was what the employer was supposed to do; otherwise, the employer would have violated Section 8(a)(5).
  • Especially in this context, the Board must require strong and convincing evidence sufficient to prove unlawful motivation; otherwise, employers would run the risk of violating the Act whenever they comply with their legal obligation to refrain from automatically giving represented employees whatever increases are granted to other employees.
  • The practical effect of the majority’s decision was to put the employer in a no-win situation, and the Board cannot reasonably adopt standards that cause parties to be in violation of the Act regardless of the actions they take.

In our view, Miscimarra’s approach makes more sense from both a practical and a legal standpoint. And GC Memo 18-02 suggests that the new NLRB General Counsel may agree, possibly giving employers something to look forward to in 2018.

  By: Brian Stolzenbach, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration, which our blog will be exploring over the next three weeks.

In keeping with the tradition of prior General Counsels (see here (GC 16-01), here (GC 14-01), and here (GC 11-11) for prior memos from President Obama’s appointees), Mr. Robb provided the NLRB’s Regional Offices with a list of issues that must be submitted to his Division of Advice for consideration before proceeding to issue a complaint in an unfair labor practice case. Although the Regional Offices are instructed to issue complaints in accordance with extant law (i.e., the law created by the NLRB during the Obama Administration), Mr. Robb suggests that he “might want to provide the Board with an alternative analysis.” As usual when the General Counsel’s office flips from Democrat to Republican or vice versa, the memo basically provides a list of important case law developments from the prior administration that are likely to be overturned. Here, Mr. Robb identifies nearly 30 such cases covering 15 important subjects for employers.

In addition, Mr. Robb immediately rescinds seven prior memos issued by President Obama’s appointees and revokes five initiatives set forth in other memos issued by the General Counsel’s Division of Advice during the Obama Administration.

As the numbers above suggest, a full explanation of Mr. Robb’s five-page memo is far more than a single blog can handle. Seyfarth Shaw labor lawyers will be posting an item on this blog each weekday for the next three weeks, exploring a different aspect of the memo each day.

P.S. If you just can’t wait and need a full and complete analysis of the memo more quickly, don’t hesitate to drop your friendly neighborhood Seyfarth labor lawyer a note. Any of us would be glad to oblige.

 

Striking  By: Bryan R. Bienias, Esq.

Seyfarth Synopsis: Court of Appeals for the First Circuit reversed the NLRB, holding that the Board lacked substantial evidence to find that the hospital group unfairly preferred nonunion workers when filling nonunion positions.

The National Labor Relations Board may not invalidate employment policies that accomplish legitimate goals in a nondiscriminatory manner “merely because the Board might see other ways to do it.” Such was the message the U.S. Court of Appeals for the First Circuit delivered to the Board in Southcoast Hospitals Group v. NLRB, No. 15-2146 (1st Cir. 2017).

The Court ruled that the Board lacked substantial evidence in finding that the hospital group discriminated against union members by giving nonunion workers a hiring preference for nonunion positions. The union’s contract granted union employees a similar preference when applying for union positions. According to Southcoast, the policy was intended to “level the playing field” and stave off staffing complaints by its nonunion workforce.

The Board argued that the policy tilted the playing field too far in favor of nonunion employees, claiming the number of nonunion positions “pales in comparison” to the number of positions covered by the union hiring policy and that nonunion hiring preference covered two facilities, as opposed to the single facility covered by the union policy.

This was not enough, the Court ruled. While the Court acknowledged that the nonunion policy covered more positions than the union hiring policy, union workers were not disproportionately harmed, given that the ratio of covered positions to covered employees was substantially the same under both policies. Likewise, nonunion employees had to compete with workers from two hospitals, as opposed to union workers’ need to compete only with workers from one hospital.

The Court also noted that the Board ignored other aspects of the hiring policies that still leave union members at a comparative advantage, namely that union seniority trumps qualifications for open union positions, while Southcoast is required to choose “the best qualified” candidate for a nonunion position, regardless of seniority.

Employer Takeaway

Employers must often walk a fine line in order to apply different policies to union and nonunion employees in a non-discriminatory manner. However, as the Court in Southcoast makes clear, this does not handcuff employers from attempting to “level the playing field” by giving certain advantages to nonunion employees, so long as the policy does not disproportionately harm union employees and is supported by a legitimate and substantial business justification.

NLRB    By: Bryan Bienias, Esq.

Seyfarth Synopsis: The U.S. Court of Appeals for the D.C. Circuit held that the National Labor Relations Board abused its discretion by ignoring its own precedent and downplaying threats made by pro-union employees during an election campaign where the union ultimately prevailed by a one-vote margin.

Should union supporters’ casual, half-hearted “threats” of violence during an election campaign warrant overturning the results in a closely contested election? Contrary to the NLRB, a three-judge panel of the D.C. Circuit Court of Appeals answered that, under the Board’s own precedent, “probably.”

The case, ManorCare of Kingston PA LLC v. National Labor Relations Board, 14-1166 (D.C. Cir. 2016) stems from a 2013 election among nurses’ aides at the employer’s Pennsylvania facility.  The union ultimately eked out a victory by a margin of 34-32.

The employer challenged the results, alleging that two bargaining unit nurses during the campaign threatened to “punch people in the face,” “beat people up and destroy their cars” and “slash their tires” if the union did not prevail. Although the nurses initially made these comments in a “somewhat joking manner,” the statements were disseminated to eight or nine other unit employees, some of whom believed the threats to be more serious, causing ManorCare to provide additional security for three days following the election.

The Board, purporting to apply its six-factor Westwood Hotel test for evaluating third-party threats during a campaign, and found the threats not sufficiently serious to overturn the election.  Without applying its test to the facts, the Board emphasized the “casual and joking nature” of the original comments and dismissed the remarks as “no more than bravado and bluster.”  Given that the statements were disseminated to other employees out of context, the Board claimed that a “game of telephone” should never be the basis for overturning an election.

The D.C. Circuit disagreed, finding that the Board abused its discretion by only cursorily acknowledging its own precedent and failing to discuss how the facts aligned with Board law. The Court noted that the Board has drawn a “firm line” that an election cannot stand where threats create a “general atmosphere of fear and reprisal” that render a free election impossible. The Court noted that the objective standard required by the Board’s precedent “requires assessing the threats according to what they reasonably conveyed, not what the speakers intended to convey.”  Thus, the Court found irrelevant that that the comments might have originated as jokes, noting that “[t]he remarks were threatening, and seriously so.”

The Court also found that the dissemination of the threats to eight or nine voters weighed against upholding the election results, especially since “only a single voter could have changed the outcome,” a fact the Board failed to acknowledge. The fact that the threats actually instilled fear in co-workers and were made in part by an employee who displayed visible injuries from a recent knife fight only underscored the objectively serious nature of the threats.

Despite the D.C. Circuit handing a victory to the company, employers can expect to see this case cited by unions and the Board when addressing similar “joking” statements by pro-company employees. As always, employers should strive to maintain an atmosphere free of physical threats and intimidation during an election campaign — among managers and staff alike — or run the risk of having a hard fought election victory overturned.

 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.