NLRB Limits Employers' Ability to Stop Union-Based Harassment
December 19, 2003
Todd D. Steenson- Chicago
Most employers are sensitive to the issue of workplace harassment, and many go to great lengths to prevent harassment claims from arising in the first place by adopting policies against harassment. A recent decision of the National Labor Relations Board demonstrates, however, that employers who proactively try to prevent employees from harassing others about union organizing issues may violate the National Labor Relations Act (NLRA). The Board ruled that an employer who asked employees to tell the employer if they were threatened or harassed about signing a union card improperly requested information about union activity. Bloomington-Normal Seating Co. and Local 362, Laborers International Union of North America, AFL-CIO.
Union Organizing Drive
Bloomington-Normal Seating Company operates a manufacturing plant in Illinois where it manufactures automobile seats for Mitsubishi Motor Manufacturing of America, Inc. In August 2001, the Laborers Union met with a group of Bloomington-Normal employees to discuss the possibility of organizing the plant’s employees. Shortly thereafter, the employer learned about the union’s organizing drive and, specifically, the union’s request that employees sign union authorization cards.
Employer’s Response
Like many employers, Bloomington-Normal responded to the organizing drive by telling employees its view about union organizing and providing them with information about unions and union authorization cards. On September 5, 2001, the company’s production manager, Todd Bodine, read a prepared speech about union issues to a group of employees, setting out the disadvantages of unionization and discussing the impact of signing a union authorization card. At the end of his speech, Bodine told the employees, “Finally, if you are threatened or harassed about signing a union card, I hope you will let us know about it. We will not stand for anyone threatening or harassing our associates for any reason.”
Union Solicitation Protected; Employer’s Speech Not Protected
In response, the Laborers Union filed an unfair labor practice charge with the NLRB, alleging that Bodine had unlawfully encouraged employees to tell management about the union activities of their co-workers. An administrative law judge (ALJ) noted that the Board has repeatedly found requests by management for employees to inform it of conduct by other employees that might include protected union activities, such as soliciting union authorization cards, to violate § 8(a)(1) of the NLRA. He ruled that under these decisions, Bodine’s request that employees tell the employer if they felt threatened or harassed by requests to sign union cards violated the NLRA.
Agreeing, the NLRB reasoned that what one employee might perceive as a threat or harassment may be nothing more than “repeated, or vigorous, or repeated and vigorous” solicitations of authorization cards that are generally protected by the NLRA. The Board held that those protected solicitations would be discouraged by requests that employees report them to the employer.
The Board also rejected Bloomington-Normal’s argument that it in effect was forced to make such an announcement because it could otherwise face liability for hostile work environment harassment under Title VII of the Civil Rights Act of 1964. Bloomington-Normal argued that its request that employees report harassment or threats about signing union cards was merely a prudent and reasonable step to prevent unlawful harassment and was consistent with its employee handbook.
The Board disagreed, finding that Bodine’s speech had nothing to do with the kind of harassment for which an employer might be liable under the discrimination laws. Rather, Bodine’s speech focused solely on union activity, and the only type of harassment for which he sought information was the protected activity of soliciting union authorization cards, the Board concluded. Thus, by requesting that employees report attempts by other employees to solicit union authorization cards, Bloomington-Normal violated § 8(a)(1) of the NLRA.
What Employer Can Do
This decision demonstrates that much of the law relating to union activity is counterintuitive. Why shouldn’t an employer take steps to prevent employees from harassing their fellows in any manner, including harassing them to sign union organizing cards? The answer is that, particularly during a union organizing campaign, any conduct by an employer that even looks like an attempt to threaten employees not to sign authorization cards or engage in union activity may violate the law.
That doesn’t mean that employers can’t state their views about unionization. It does mean, though, that all employer communications during an organizing drive will be closely scrutinized and that employers should have those communications reviewed by a labor lawyer.
The decision also does not mean that employers must tolerate harassing and abusive tactics during an organizing campaign. If an employee comes to you and complains that a co-employee is harassing him or her to sign an authorization card, there are steps you can take.
No Solicitation/No Distribution Policy
Employers also may limit the kind of solicitation involved in the Bloomington-Normal case by adopting a legal solicitation and distribution policy. Such a policy has several components:
• First, you must prohibit all solicitation and distribution of literature with respect to all non-work related matters; you cannot simply prohibit union solicitation and distribution. For example, if you allow employees to sell Girl Scout cookies for their children or candy to support the high school band, you cannot prohibit union solicitation and distribution.
• Second, you may prohibit solicitation during the working time of either the solicitor or the solicitee; however, with limited exceptions, you cannot preclude solicitation in working areas as long as neither party is working. Distribution, on the other hand, can be limited to non-work time and non-work areas.
However, because the NLRB closely scrutinizes such policies, employers should have such policies reviewed by their labor and employment counsel.
For more information, e-mail Todd D. Steenson at
todd.steenson@hklaw.com, or call toll free, 1-888-688-8500.