Elizabeth Young Mar. 5, 2013, 3:39pm

NEW ORLEANS–  The U.S. 5th Circuit Court of Appeals denied an application for enforcement of an order from the National Labor Relations Board (NLRB) in an opinion released Friday.

After charges were filed by the United Steelworkers of America, an administrative law judge and the NLRB found that Arkema Inc. violated the National Labor Relations Act and as a result, invalidated a 2008 decertification election.

The NLRB originally found that Arkema, a Houston-based chemical manufacturing plant, violated the act by disciplining a union employee for harassment, sending an anti-harassment policy to employees, ceasing to recognize the union after a decertification election but before an official certification of the results and by its actions against an union group president after the election.

The actions in question took place during the run up to and immediately after a union decertification election. The first issue in question was the company’s disciplining of an employee for harassment after he approached a more junior employee about the election. The junior employee sometimes needed her physically stronger coworkers to help her with aspects of her job, and during the course of this conversation it was intimated that if she did not support the union, union employees would cease to assist her even in the event of an emergency. After this encounter was reported to management, the union employee was disciplined and a memo about the company’s anti-harassment policy was sent to employees.

On Aug. 11 and 12, 2008 bargaining-unit employees voted to decertify 18-17. On Sept. 4, the union group president was given a letter by management detailing three alleged violations of the company’s anti-harassment policy. The letter was placed in his personnel file, but he was otherwise not disciplined.

Writing on behalf of himself and Circuit Judges W. Eugene Davis and Edith H. Jones, Judge Jerry E. Smith finds that the union employee’s threats do not fall under the protection of the act and that Arkema could discipline him for his actions. The email outlining the company’s anti-harassment policy could not, in the opinion of the court, be reasonably read to prohibit protected union activity. The NLRB originally held that Arkema violated the act in its post-election changes to employment terms and direct dealing with employees before the decertification results had been certified. The court found no grounds for invalidating the decertification election, so the company’s acceptance of the election results before their official validation is not a violation. As far as the final charge, the court found that Arkema did not demonstrate anti-union hostility in its treatment of the union president and that no such animus was the motivating factor in placing the letter in his file.

The court found no further evidence of violations of the National Labor Relations Act and the decertification election is considered valid.

Case No. 11-60877.  

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