• When Is Harassment Not Harassment?
  • September 11, 2003
  • Law Firm: Ford & Harrison LLP - Atlanta Office
  • Most employers realize they face potential liability if they fail to stop illegal harassment in the workplace. However, a recent decision by the National Labor Relations Board illustrates that conduct some employers view as inappropriate harassment may actually be activity that is protected under the National Labor Relations Act (NLRA). In Bloomington-Normal Seating Co., the Board held that an employer's speech encouraging its employees to inform the company if the employees were threatened or harassed about signing a union card violated the NLRA.

    The Board's decision affirms the opinion of the Administrative Law Judge (ALJ), who noted that the Board has repeatedly held that requests by management for employees to inform the company of conduct by other employees that might include protected union activities, such as soliciting union authorization cards, violates § 8(a)(1) of the NLRA. According to the Board, what one employee might perceive as a threat or harassment may be nothing more than repeated or vigorous solicitations that may be protected by the Act. Such protected solicitations would be discouraged by requests that employees report them to the employer, the Board held.

    The employer in Bloomington argued that under Title VII of the 1964 Civil Rights Act, an employer is sometimes held liable for a hostile work environment created by employees who engage in illegal harassment of other employees. The employer claimed that the supervisor's request that employees report being harassed or threatened about signing union cards was consistent with such rulings and with the employee handbook. The Board rejected this argument, finding that the supervisor's speech had nothing to do with employee conduct for which the employer might ultimately be responsible in court. The Board found that the supervisor's entire delivery was an anti-union message and that the only type of harassment for which he solicited reports was the protected activity of soliciting union authorization cards. Thus, by requesting that employees report attempts by other employees to solicit union authorization cards, the employer violated § 8(a)(1) of the NLRA.

    Employers should be aware that the Board gives employees who are involved in union organizing activities great leeway as to the types of activities in which they can engage. While an employer has the right to present to employees its position regarding unions, the employer should consult with experienced labor and employment counsel before conducting any speech during a union organizing campaign.