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2nd Circuit: ‘No Harassment’ Rule During Union Campaign Had Chilling Effect

By Bona M. Kim   4/4/2008

An employer violates employees’ right to organize when it promulgates a new “no harassment” rule after a union files a petition with the National Labor Relations Board (NLRB) seeking to represent the employees in the collective bargaining process, according to the 2nd U.S. Circuit Court of Appeals .

In January 2000, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, launched an organizing drive among the employees of Stanadyne Automobile Corp. in Windsor, Conn. On May 15, 2000, the union filed a petition with the National Labor Relations Board (NLRB) seeking an election to represent Stanadyne’s Windsor employees. The NLRB scheduled the election for June 29, 2000.

Before the union filed its petition on May 15, 2000, Stanadyne had no rule prohibiting employees from discussing any topic they chose. However, after the union filed its election petition, Stanadyne’s supervisors informed employees that they were not allowed to discuss the union or solicit union support during working hours. In fact, some employees were warned that talking about the union could result in disciplinary action or termination.

On June 6, 2000, Stanadyne took the “no talking” rule one step further during an address to its Windsor employees by President and CEO William Gurley. In delivering his prepared speech, Gurley promulgated a rule against “harassment,” stating that it “has come to my attention that some union supporters … are harassing fellow employees. You can disagree with the company position; you can be for the union. You can be for anything you want to, but no one should be harassed. Harassment of any type is not tolerated by this company and will be dealt with.”

On June 29, 2000, less than four weeks after Stanadyne promulgated its new “no harassment” rule, the union lost the election at the Windsor facility. Based on the union’s objections and the above-stated facts, an administrative law judge (ALJ) found that Stanadyne had violated the National Labor Relations Act (NLRA) when it barred employees from talking about the union and then implementing its new “no harassment” rule. When Stanadyne appealed the ALJ’s finding to the NLRB, the NLRB affirmed the ALJ’s finding as to the prohibition against discussing union issues, but reversed the finding as to the “no harassment” rule, finding that the rule was not unlawful where Gurley had knowledge of unprotected activity (e.g., vandalism) occurring in relation to union solicitation.

Upon the union’s appeal of the NLRB’s finding, the 2nd Circuit affirmed the NLRB’s holding regarding Stanadyne’s barring its employees from discussing union matters. However, the appeals court could not agree that the NLRB acted reasonably in finding that the “no harassment” rule was not a violation of the NLRA, since employers “may not promulgate a rule which has a chilling effect on the right to organize or join a union.”

In reversing the NLRB’s decision as to Stanadyne’s “no harassment” rule, the court reasoned that even if a rule does not explicitly restrict protected activity, the NLRB has determined that the rule will constitute a violation if either:

  • Employees would reasonably construe the language to prohibit protected activity.
  • The rule was promulgated in response to union activity.
  • The rule has been applied to restrict the exercise of protected rights.

In this case, the court found that the NLRB was unreasonable in finding that employees would not reasonably construe the rule to prohibit their protected activity of organizing, especially when Stanadyne had already forbidden them from discussing unionization during working hours.

Recognizing that “context is everything,” and that in this context Stanadyne’s employees could reasonably believe that they were barred from engaging in protected activity by the new “no harassment” rule, the appeals court vacated the NLRB’s determination as to the lawfulness of the rule’s promulgation.

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO v. NLRB , 2nd Cir., No. 05-6026-ag (March 20, 2008).

Professional Pointer: Context really is everything. Before promulgating a new rule in the face of a union election, be sure to consider how the rule may affect employees’ rights to organize and/or collectively bargain under the NLRA.

Bona M. Kim is an attorney with Allen, Norton & Blue PA , a Worklaw® Network member firm in Orlando, Fla.

Editor’s Note: This article should not be construed as legal advice.

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