01/17/2025: Navigating the Tensions Between the NLRA and Anti-Harassment Laws
Abruzzo makes a valiant effort to deal with a sticky area of labor law.
Harmonization of the NLRA and EEO Laws, GC 25-04, (GC Memo)
The National Labor Relations Act (NLRA) and Equal Employment Opportunity (EEO) laws, like the Civil Rights Act (CRA), Americans with Disabilities Act (ADA), and so on are sometimes said to be in tension with one another in a few specific areas. In this memo, GC Abruzzo discusses three of these seeming areas of conflict and gives some guidance about how each conflict can be navigated.
Civility and Harassment
The EEO laws make it unlawful to harass coworkers along certain protected characteristics (like race and gender). But the NLRA gives workers the right to criticize their employers and coworkers even in ways that are seen as uncivil. Thus, some argue that employers that attempt to meet their EEO obligations by adopting aggressive anti-harassment policies will end up running afoul of the NLRA.
Abruzzo’s memo cuts through this contradiction by distinguishing between anti-harassment policies and civility policies. Anti-harassment policies that specifically target protected characteristics (like race or gender) are legal and don't violate the NLRA. However, general "civility" rules that broadly require polite behavior can violate workers' NLRA rights because labor disputes often involve conflict and criticism that can be seen as uncivil. Employers can have anti-harassment policies but need to be careful with broader behavior rules.
Put differently, so long as anti-harassment policies are written narrowly so that they only pertain to EEO-relevant harassment, they do not create any NLRA-specific problems. It’s when something that is called a “harassment policy” is actually written so broadly that it would be read as including all sorts of impolite or uncivil behavior, not just EEO-relevant harassment, that it can run afoul of the NLRA.
Employers concerned about this tension should just write their anti-harassment policies correctly rather than writing them in an expansive way that a reasonable worker would read as prohibiting certain kinds of protected activity.
Investigative Confidentiality
The EEO laws require employers to prevent unlawful harassment in their workplace. In order to do that, employers need to be able to investigate accusations about such harassment and therefore also need to be able to ensure the integrity of those investigations by requiring confidentiality of certain participants. But the NLRA gives workers the right to talk to one another about workplace issues, including harassment, and investigative-confidentiality rules often, by their terms, forbid them from doing so.
Abruzzo argues that this tension can be resolved by starting from the understanding that, in general, employers cannot impose blanket confidentiality rules in workplace investigations as such rules do prevent workers from communicating and coordinating with one another over working conditions. But the same legal standard that prohibits these kinds of blanket rules does allow for exceptions when the employer can show that there is a legitimate and substantial business interest for the rule. In the right circumstances, things like protecting witnesses, preventing evidence destruction, or honoring a victim's request for privacy could qualify as legitimate and substantial business interests for an investigative confidentiality rule.
Harassment During Protected Activity
The EEO laws make it unlawful to harass coworkers along certain protected characteristics (like race and gender). But the NLRA gives workers the right to engage in certain protected activity — such as strikes or airing of grievances — during which they might say something that harasses coworkers along certain protected characteristics, e.g. yelling a racial slur at a scab.
Abruzzo attempts to navigate this tension by noting that protected activity can become unprotected if it is done in an egregiously offensive manner. Under current Board law (Lion Elastomers), whether an utterance is too egregious depends on whether it is made to a manager, to a coworker, or on a picket line as each scenario uses a different legal standard. But in all three standards, the fact that an utterance offensively implicates EEO-protected characteristics would weigh in favor of finding that it was unprotected. There are other factors to consider as well, e.g. whether the employer consistently disciplines people for the language they are objecting to, but the EEO implications are factored in as part of the analysis of whether protected activity becomes unprotected. This factoring-in thus suggests there is more harmony here than people sometimes think.
This part of the memo does the least to resolve or clarify the legal and conceptual tension at issue. The problems caused by this tension are further amplified by the fact that this is one of those areas where Republican-led and Democratic-led Boards frequently diverge, meaning that, in addition to the inherent ambiguity in trying to figure out whether someone said something that was too racist or too sexist to be considered protected activity, there is just legal uncertainty about what standard is even going to be applied by the time a particular case makes it to the NLRB.
Significant Cases Cited
Stericycle, Inc., 372 NLRB No. 113 (2023): Establishes the objective standard for determining whether workplace rules violate the NLRA by assessing if they have a reasonable tendency to chill employees from exercising Section 7 rights.
Lion Elastomers LLC, 372 NLRB No. 83 (2023): Affirms that there is no requirement under NLRA for employees to remain temperate or unemotional when exercising protected rights.
Atlantic Steel Co., 245 NLRB 814 (1979): Sets forth the framework for analyzing whether workplace interactions with management lose NLRA protection based on location, subject matter, nature of conduct, and provocation.
Pier Sixty, LLC, 362 NLRB 505 (2015): Establishes the totality of circumstances test for analyzing whether conduct outside the workplace loses NLRA protection.
Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984): Sets the standard for strike-line conduct, examining whether employee conduct would "reasonably tend to coerce or intimidate" others in exercising their NLRA rights.
MHM Health Professionals, LLC d/b/a Centurion Professionals, 05-RC-356811 (Regional Election Decision)
On December 17, 2024, 1199SEIU United Healthcare Workers East filed a petition seeking to represent medical and mental health providers at MHM Health Professionals' Baltimore Central Booking & Intake Center facility. The case presented two key issues: whether to defer determining physicians' eligibility until after the election, and whether to conduct a manual or mail ballot election.
The bargaining unit includes approximately 38 employees who provide medical and mental health services. While the parties agreed on most unit inclusions and exclusions, they disputed whether physicians should be included. The employer argued physicians are supervisors under Section 2(11) of the Act, while the union maintained they are employees under Section 2(3).
The Regional Director deferred the physician eligibility question to post-election proceedings since the disputed group comprised less than 20% of the unit. The employer objected, raising constitutional arguments about Board member removal protections and Seventh Amendment rights. The Regional Director rejected these arguments, citing recent precedent requiring showing of actual harm from removal protections and long-established Supreme Court holdings that NLRB proceedings fall under the "public rights" exception to the Seventh Amendment.
Regarding election format, the parties initially stipulated to a manual election at the facility. However, the State of Maryland, which controls the facility, denied permission to hold the election there. The employer proposed two alternative sites - its regional office (9-17 miles away) and a local academy (half mile away). The union opposed both locations.
Given the access issues, unpredictable healthcare schedules, correctional facility security protocols, and travel distances to alternative sites, the Regional Director ordered a mail ballot election. The ballots will be mailed January 21, 2025, from the NLRB Region 5 office in Baltimore. Physicians will vote under challenge, with their eligibility to be resolved after the election if their votes could affect the outcome.
Significant Cases Cited
Associated Builders & Contractors of Texas, Inc. v. NLRB, 826 F.3d 215 (5th Cir. 2016): Upheld Board's authority to limit scope of pre-election hearings by deferring voter eligibility issues until after election
London's Farm Dairy, Inc., 323 NLRB 1057 (1997): Affirmed Board's historical practice since early days of Act of permitting mail ballot voting in appropriate circumstances
San Diego Gas & Electric, 325 NLRB 1143 (1998): Established Board's strong preference for manual elections while recognizing mail ballots may be appropriate in certain cases
Humphrey's Executor v. United States, 295 U.S. 602 (1935): Congress may establish expert agencies led by officers removable by President only for good cause
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): Seventh Amendment right to jury trial does not apply to NLRB proceedings because they involve statutory rights unknown to common law
Liberation in a Generation, 32-AC-352349 (Regional Election Decision)
On August 16, 2024, the Pacific Media Workers Guild was certified as the exclusive bargaining representative for certain PolicyLink employees working on the LibGen project in Oakland. The initial bargaining unit included Senior Policy Managers, Political & Policy Managers, Grassroots Partnership Coordinators, and Policy Coordinators.
In December 2023, before this certification, the Union filed to add more job classifications to the unit. The Regional Director approved this request in April 2024, expanding the unit to include Grassroots Relationship Managers and Program Coordinators.
A significant organizational change occurred on December 31, 2023, when Liberation in a Generation separated from PolicyLink. Starting January 1, 2024, Liberation in a Generation became the sole employer of all the unit employees.
On September 30, 2024, Liberation in a Generation filed to amend the certification to reflect this change in employer identity. The Union agreed to this amendment through a letter from their attorney dated December 30, 2024.
The Regional Director approved the amendment on January 15, 2025. The bargaining unit now includes the same job classifications but lists Liberation in a Generation as the employer instead of PolicyLink. The unit remains based at the same Oakland facility.