Reversing NLRB, Fifth Circuit Holds that Employee's Pro-union Harassment Was Not Protected Activity

Practical Law Legal Update 2-524-7726 (Approx. 6 pages)

Reversing NLRB, Fifth Circuit Holds that Employee's Pro-union Harassment Was Not Protected Activity

by PLC Labor & Employment

Key Litigated Issues

In NLRB v. Arkema, Inc., the key litigated issues were whether an employer committed unfair labor practices (ULPs) requiring the NLRB to set aside a union decertification election by issuing a:

Written reminder of its harassment policy to a union supporter.
Letter to employees expanding the terms of its harassment policy to prohibit pro-union (but not anti-union) harassment.

Background

The employer operates a chemical manufacturing plant. During the critical period between the filing of a decertification election petition and the election, an employee (Saltibus), who worked as a utility operator, urged a female colleague (Russell) to support the union. In the process of urging Russell to back the union, Saltibus said that if the union does not get elected, there would be "no support [and] the relationship's going to change." Russell reported this statement which she understood to be a threat of withdrawing assistance necessary to her performing her job, which involved moving heavy vats of chemicals.

The employer issued Saltibus a written reminder for violating the company harassment policy the next day. The written reminder identified violations, including:

Making intimidating and threatening remarks toward Russell and creating an offensive working environment.
Threatening Russell's job if she continued to pursue her non-union status.
The reminder warned that further misconduct might result in the termination of employment.

The written reminder also cited a separate occasion where Saltibus allegedly "made threatening and inappropriate remarks to a laboratory employee concerning her wishes to not join the union." The employer did not provide any further details about that event. On the following day, the employer sent an e-mail to employees that prohibited employees from being "harassed, intimidated or threatened in any way … by anyone, including the union, for refusing to support a strike or certification."

At the conclusion of the election, in which the bargaining unit employees voted 18-17 to decertify the union as their collective bargaining representative, Arkema notified employees that the collective bargaining agreement no longer existed at the facility.

Following the decertification election, union group president Fred Shepherd was summoned to a meeting with Arkema managers to investigate complaints management had received regarding alleged instances of pro-union misconduct. These incidents included:

Throwing objects around the shop.
Threatening an employee by stating that he was either with or against him.
Telling an employee not to provide instructions to another employee because he was not union.

Ultimately, Arkema sent Shepherd a letter noting discrepancies in Shepherd's explanations of the allegations and warning that verified reports of future misconduct could lead to disciplinary action including termination. The letter was placed in Shepherd's personnel file.

In a 2-1 decision, the panel (Board) heading the NLRB's judicial functions upheld an administrative law judge's (ALJ) finding that the employer violated the NLRA by:

Issuing Saltibus a written reminder of its harassment policy for urging Russell to support the union in an upcoming decertification election.
Issuing an e-mail prohibiting harassment that included prohibitions of only pro-union harassment.
Ceasing to recognize the union after the election but before an official certification of the results.
Disciplining Shepherd for alleged instances of pro-union harassment.

(See Legal Update, Employer Unlawfully Disciplined Union Supporter under its Harassment Policy: NLRB.)

The NLRB petitioned the US Court of Appeals for the Fifth Circuit for enforcement of the Board's order upholding the ALJ's invalidation of the decertification election.

Outcome

On February 28, 2013, the Fifth Circuit issued an opinion in NLRB v. Arkema, Inc., denying the NLRB's petition for enforcement on the grounds that Saltibus' threats were not protected by the NLRA and because Arkema's e-mail could not reasonably be read to prohibit protected conduct.

With regard to Arkema's treatment of Saltibus, the court found that pro-union conduct is generally unprotected where:

The speech is intended to threaten or intimidate rather than merely persuade (Paramount Min. Corp. v. NLRB).
The speaker is in a position to actually enforce the threats (Liberty Nursing Homes).
It constitutes offensive, hostile language and threats under the guise of union activity (Adtranz ABB Daimler-Benz Transp., N.A., Inc. v. NLRB).

The court rejected the Board's conclusion, holding that Saltibus' conduct was unprotected by the NLRA because:

He intended to threaten Russell with withdrawing the help on which she depended to do her job, with his statement strongly implying that he was referring to union employees and not merely his own assistance.
His threat was credible, as Russell needed assistance from others to perform physical aspects of her job, and a threat to withdraw that assistance, whether gratuitous or not, would impair her job performance and could place her job at risk.

As for Arkema's e-mail to employees, the Fifth Circuit noted that, under Lutheran Heritage Village-Livonia, a court must first determine whether the warning explicitly restricts protected activities. If it does not, the existence of a violation is dependent on a showing of one of the following:

Employees would reasonable construe the language to prohibit Section 7 activity.
The rule was promulgated to in response to union activity.
The rule has been applied to restrict the exercise of Section 7 Rights.

The Board argued that the e-mail would be reasonably interpreted by employees as prohibiting Section 7 activity, and that it was sent in response to union activity. The Fifth Circuit disagreed, finding that:

The e-mail was not sent in the context of ULPs.
The text of the e-mail, requesting employees to alert management if they "feel" harassed and prohibiting harassment "in any way," could not be interpreted as prohibiting protected activity, since unions do not have broad protection to engage in harassment.
The e-mail applied to all employees, did not focus on reporting only those employees advocating for the union and even included an NLRB pamphlet on employee rights.
Although the e-mail was distributed before the election, it followed Saltibus' harassment, which the court found to be unprotected conduct.

The court also rejected the Board's conclusions as to Arkema's derecognition of the union and its discipline of Shepherd, holding that:

Because there are no grounds for invalidating the decertification election, Arkema's reliance on the election results before their formal validation did not violate the NLRA.
The fact that Shepherd's investigation and discipline coincided with his pro-union activities, without more, is not sufficient to demonstrate that Arkema was motivated by anti-union animus.

Practical Implications

This decision clarifies the Fifth Circuit's analysis about:

Disciplining employees for misconduct that is intertwined with activity protected under the NLRA.
The lawfulness of notifications prohibiting harassment and coercion.
The lawfulness of ceasing to recognize a union before an official report on voting results in a decertification election, so long as evidence proves an actual loss of support for the union majority at that time.

Although employers should be encouraged that the NLRA may not insulate harassing and intimidating misconduct:

The NLRB's general counsel may issue complaints on the same issues.
The Board may issue decisions like this in the future.
Other circuit courts may not be persuaded by the Fifth Circuit's interpretation here.

Reversing NLRB, Fifth Circuit Holds that Employee's Pro-union Harassment Was Not Protected Activity | Practical Law