• Threats by a Union Member Are Not Protected Activity
  • April 4, 2013 | Authors: Fiona W. Ong; Teresa D. Teare
  • Law Firm: Shawe & Rosenthal LLP - Baltimore Office
  • In NLRB v. Arkema, Inc., the U.S. Court of Appeals for the Fifth Circuit found that, contrary to an order of the National Labor Relations Board (NLRB), an employer’s discipline of a pro-union employee who threatened a co-worker and the employer’s issuance of an anti-harassment memo did not invalidate an election in which employees voted to decertify the union.

    Facts of the Case: The employer’s production and maintenance employees were represented by a union. Some of those union members began a campaign to decertify the union, meaning that they sought to remove the union from representing the production and maintenance employees. During the campaign, a pro-union employee threatened a new female employee that male employees would not come to her aid in an emergency if she did not support the union. The female employee, fearing for her safety, reported the threat to management and the pro-union employee was disciplined. The employer also issued a memo to all employees about its anti-harassment policy, encouraging employees to report harassment, intimidation or threats to management or the NLRB’s regional office.

    An election was then held, in which a majority of employees voted to decertify. Management immediately notified employees that the collective bargaining agreement no longer existed, and began implementing changes to the terms and conditions of employment. The union filed an election objection and unfair labor practice charge. An administrative law judge (ALJ) found that the warning and memo were violations of the National Labor Relations Act, and that these illegal actions invalidated the decertification election. The NLRB affirmed the ALJ’s order, and the employer petitioned the federal appellate Court for review.

    The Court’s Ruling: Where there is a claim that the employer unlawfully disciplined a union supporter, the employer bears the burden of showing that it had a good-faith belief that the employee engaged in misconduct. The Court, unlike the NLRB, found that the employer had a good faith belief that the pro-union employee sought to threaten and intimidate the other employee. The Court rejected the NLRB’s conclusion that the pro-union employee’s conduct was simply a persistent effort to persuade. As the Court stated, threats are not protected under the NLRA.

    The Court also disagreed with the NLRB that the anti-harassment memo could be construed to prohibit protected union activity. It found that the memo was not sent in the context of unfair labor practices, and that instructing employees to alert management if they felt harassed was not reasonably translated into prohibiting protected activity.

    Impact of this Case: The line between threats (activity which is not protected by the NLRA) and persistent or aggressive efforts to persuade is often difficult to gauge. The NLRB often rules that activity that is harassing in the eyes of the so-called victim is simply lawful and persistent persuasion. In this case, the Court agreed with the employer that the NLRB went too far.