On February 28, 2013, the 5th Circuit Court of Appeals completely reversed the National Labor Relations Board in Arkema, Inc., 16-CA-26371. The following is excerpted from the Board’s summary of the case:
This case arises out of an August 2008 decertification election at a Houston-area chemical manufacturing plant, which the union lost 18-17. The Board found four violations of the Act, but the Court reversed each one.
1. Discipline of M.S. In July 2008, one experienced employee, M.S., told a junior female coworker that the union needed her support and that “relationships would change at the plant” without it. Although he later testified that he only meant that he would not help her with arduous physical tasks, the coworker reported the remark to management, claiming that M.S. threatened that he would not help her in an emergency if she did not support the union. The next day, management issued M.S. a written warning for failing to comply with Arkema’s anti-sexual harassment policy, specifically for making intimidating remarks towards a female coworker by threatening her job if she remained nonunion.
Although the Board found that Arkema violated Section 8(a)(1) by disciplining M.S. without having a good-faith belief that he engaged in the misconduct alleged and without any proof of misconduct itself, see NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964), the Court disagreed. Instead, the Court (quoting the dissenting Board members) concluded that Arkema could reasonably have believed that M.S. “threatened to retaliate against [his coworker] because of her exercise of Section 7 rights . . . that could jeopardize both [her] continued employment and her physical safety.” Further, the Court held that, “[e]ven if the incident began as protected activity, [M.S.] escalated the encounter, thus losing the protection of the Act” by threatening his coworker’s safety. Specifically, his “conduct exceeded persuasion—he sought to threaten and intimidate” and “communicate[d] to her that he would withdraw the help on which she depended to do her job.” Thus, the Court held that Arkema had a good faith basis for disciplining M.S. for unprotected misconduct.
2. Anti-Harassment Rule. Shortly thereafter, Arkema sent a memo to bargaining unit employees, informing them that they had a right not to be harassed and urging employees to contact the Board’s regional office if they suffered “any” harassment. The Board concluded that employees would reasonably read this email to preclude protected “persistent union solicitation,” particularly in light of Arkema’s other unfair labor practices. The Court, however, held otherwise, particularly given its rejection of the prior unfair labor practice finding: “[T]he request that employees should alert management if they ‘feel’ harassed [does not] transform a policy into prohibiting Section 7 activity; it is unclear what kind of objective requirement the Board would prefer for an employee to voice his concern.”
3. Rejection of bargaining obligation. Within 90 minutes of the ballot counting, Arkema announced to the bargaining unit via email that “the collective bargaining agreement no longer exists in this facility.” Within a week, it began talking directly to employees about workplace policies, then removed the union bulletin boards, and finally granted a unilateral wage increase. Under Board law, it is unlawful for an employer to reject its bargaining obligation after a decertification election victory until the Board certifies the results. W.A. Krueger, 299 NLRB 914 (1990). Applying its own precedent, Dow Chem. Co. v. NLRB, 660 F.3d 637, 654 (5th Cir. 1981), however, the Court refused to enforce the Board’s finding here, declining to revisit that precedent in light of a change in Board law governing withdrawal of recognition.
4. Written warning to union president. A week after the decertification election, management summoned union group president F.S. to a meeting, in which it alleged that he had thrown items around the shop, threateningly told a coworker that he was either “with him or against him,” and directed another coworker not to explain something to a colleague because he was non-union. F.S. denied two allegations and explained the third. Two weeks later, F.S. met with management as union president to discuss Arkema’s rejection of its bargaining obligations. Mere hours later, management gave F.S. a written warning letter for violation of Arkema’s anti-harassment policy. While agreeing that the warning constituted an adverse employment action, the Court rejected the Board’s Wright Line analysis, concluding that the General Counsel failed to prove unlawful motive. In so holding, the Court relied on its previous rejection of the Board’s other unfair labor practice findings as proof of animus. It then held that timing could not shoulder the burden alone, particularly in the absence of any other circumstantial evidence of improper motive. Doing so, according to the Court, “would swallow the burden and the entire purpose of the Wright Line analysis . . . if a meeting and disciplinary letter, without any further evidence of anti-union animus, could never occur simultaneously with union activity.”
Finally, the Court reached out to overrule that portion of the Board’s order directing a new election, having found lawful the underlying actions on which the Board relied in rejecting the election results. While “acknowledg[ing] that . . . Board orders of certification for representation elections are not directly reviewable,” the Court nevertheless “review[ed] the Board’s determination here, where the dispute over the election has resulted in a finding by the NLRB that unfair labor practices have been committed and Arkema refuses to bargain with the Union relying on the results of the election.”