Labor & Employment Law

By Harvey Randall, Esq.

2d Cir. Holds That Anti-Harrassment Policy Violates NLRA
Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

UAW v. NLRB, ___F.3d ___(2d Cir. March 20, 2008), is an important 2d Circuit decision which reversed the decision of the NLRA and concluded that the employer's anti-harassment policy violated the NLRA. As the court reasoned:

An employer may not promulgate a rule that has a chilling effect on the right to organize or join a union. See 29 U.S.C. § 158(a)(1); Dist. Lodge 91, Int?l Ass?n of Machinists v. NLRB, 814 F.2d 876, 879-80 (2d Cir. 1987). Even if a rule does not explicitly restrict protected activity, the Board has determined that the rule will constitute a violation if: ?(1) employees would reasonably construe the language to prohibit [protected] activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of [protected] rights.? Martin Luther Mem?l Home, Inc., 343 N.L.R.B. 646, 647 (2004).

Whether or not Gurley?s professed reason for the no-harassment rule -- ?it has come to my attention that some Union supporters, not all, but some, are harassing fellow employees? -- is by itself sufficient to demonstrate an NLRA violation, it was certainly unreasonable for the Board to find that ?employees would [not] reasonably construe [the no-harassment rule] to prohibit [protected] activity.? Id.

Here, as elsewhere, context is everything. When Gurley announced the no-harassment rule on June 6, Stanadyne had already promulgated an illegal rule, conveyed by its supervisors to the employees, that the employees were not allowed to discuss unionization or solicit co-workers on that issue during working hours. Against that background, no reasonable employee could fail to infer that the rule against ?harassment,? which Gurley did not define and which, for example, can amount to no more than persistent annoyance, see Merriam Webster?s Collegiate Dictionary 529 (10th ed. 1997), was intended to discourage protected election activity.

The Board?s reliance on Gurley?s knowledge of unprotected activity, such as vandalism, graffiti, and a battery, is irrelevant; for what counts, under the first prong of Martin Luther, is the knowledge and understanding of a reasonable employee. Gurley nowhere made express reference to these incidents in his speech, and no evidence was presented to the Board to show that the employees generally would have known of these specific incidents and understood that Gurley was referring to these specific incidents. Nor is there anything in the record to suggest that, even if a reasonable employee had known and understood that Gurley might have been referring to unprotected activity, the employee would have considered the no-harassment rule limited to such conduct.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on April 11, 2008 (boomark / email).