Anti-Harassment Policy Covers Anti-Union Harassment

By Rose McCaffrey

Employees who engage in pro-union campaigning are protected from retaliation by the National Labor Relations Act, but not when campaigning activity reaches the level of harassment or intimidation. But where is that dividing line? A recent case gives an example. NLRB v. Arkema, Inc., No. 11-60877 (5th Cir. Feb. 28, 2013). In this case, a “chief operator” told a female co-worker that, if she did not support the union in a de-certification vote, relationships would change at the plant. “Fearing for her safety and job,” the woman complained. She said the chief operator had told her that male employees would not come to her aid in an emergency if she did not support the union. During the resulting investigation, the chief operator confirmed that he had said he wouldn’t help her “carry her load,” but maintained that he would still help her if she were in danger. He denied mentioning the woman’s sex when he spoke to her. The employer disciplined the chief operator under its anti-harassment policies and also sent out a notice to employees advising them that the union could not harass them for anti-union views.

For its part, the NLRB concluded that the employer had no basis to believe that the employee had violated company policy, because the employee “did nothing that could conceivably be considered to have created an offensive environment.” On the other hand, the court concluded the employee’s threat to the female co-worker was “eminently credible” because the chief operator’s conduct was designed to threaten or intimidate, rather than to persuade; the chief operator admitted that he intended to communicate to his co-worker that he would withdraw the help on which she depended to do her job; and the chief operator was in a position to actually enforce his threat because of his rank and position at the plant.

Harassment and intimidation are not protected concerted activities, but, despite this case, there’s still a large tract of gray between pro-union campaigning and harassment. Employers should always consult labor counsel before disciplining in the gray zone.

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