Employer’s Anti-Union Policies Violate Federal Labor Law

In an extraordinary rebuke of the Republican-dominated National Labor Relations Board, a panel of the U.S. Court of Appeals for the Second Circuit has struck down a vague “no harassment” policy implemented by an employer during an acrimonious union organizing campaign.

In UAW v. NLRB, (March 20, 2008), a Connecticut automobile plant responded to a UAW organizing campaign by threatening to fire employees that even talked about the union during work time, and by implementing a vague “no harassment” policy intended to thwart union organizing. On review, the NLRB agreed that employer policies that prohibit discussions or solicitations regarding unionization during working hours are illegal.

While federal courts typically defer to the decisions of administrative agencies such as the NLRB, the Second Circuit reversed the NLRB’s conclusion that the announcement of a “no harassment” policy was not illegal. The employer defended the “no harassment policy” as addressing reported intimidation and vandalism at the plant. However, the Second Circuit reminded the NLRB that the employer’s intentions behind the policy are irrelevant, as it is necessary to consider how a reasonable employee would interpret a “no harassment” policy. Here, the Second Circuit ruled, a reasonable person would interpret such a policy as prohibiting union organizing, given that the employer already implemented a policy expressly prohibiting union organizing.

Unfortunately, as an example of federal law’s bias toward employers, the Second Circuit upheld the NLRB’s ruling that the employer’s fearmongering – regularly characterizing the Union as violent, strike-happy, pervaded by “violence, threats, intimidation and [ ] death” – was not illegal.

Read the decision