Harassment Ruled a Protected Union Activity

What do you mean you don’t want to join the union?In an advisory to employers, the California Chamber of Commerce provides this not-very-useful recap of a recent National Labor Relations Board decision:

Employers have an obligation to investigate and take appropriate corrective action for employee misconduct; at the same time, employees have a protected right to discuss union activities. In a 2012 decision, the National Labor Relations Board (NLRB) put employers between a rock and a hard place when these two issues intersected: If one employee harassed another in the course of discussing union activities, the employer could not discipline the harasser. However, the employer was then open to a lawsuit from the harassment victim for failing to act.

Recently, the NLRB issued a new decision opening the door slightly for employers to take corrective action against this type of harassment. An employer may terminate an employee for lying about misconduct, even if the underlying behavior constituted a protected union activity (Fresenius USA Manufacturing, Inc. and International Brotherhood of Teamsters, Local 445. Case 02– CA–039518 June 24, 2015).

So, in other words, the employer remains in a Catch-22: subject to a lawsuit for failing to protect an employee from the harassment of another who can work “discussing union activities” into his or her harassment.

Apparently the only possible protection the employer has is to ask the harasser if he or she in fact harassed another employee, and if Harasser says “No,” then the employer can discipline the harasser for lying.

Of course, these He said/She said cases are themselves a bag of worms no employer can hope to win.

Bottom line: Harassment is legal when practised by union sympathizers; employers and employees who aren’t interested in unionization can lump it.

Mary L. G. Theroux is Senior Vice President of the Independent Institute. Having received her A.B. in economics from Stanford University, she is Managing Director of Lightning Ventures, L.P., a San Francisco Bay Area investment firm, former Chairman of the Board of Advisors for the Salvation Army of both San Francisco and Alameda County, and Vice President of the C.S. Lewis Society of California.
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