National Labor Relations Board v. Arkema, Inc.
2013 U.S. App. LEXIS 4538
| 5th Cir. | 2013Background
- Arkema operates a Houston chemical plant with unit employees represented by the United Steelworkers; a decertification petition led to a secret-ballot election (18–17) to remove the union.
- Saltibus, a lead operator, told Russell the union needed her support and suggested relationships would change, prompting harassment-policy warnings.
- Turley, the plant manager, issued an email and memo outlining rights not to be harassed or retaliated against for non‑union status, and sent an NLRB rights flyer.
- Post-election actions included removal of union bulletin boards, cessation of dues collection, a wage increase, and a unilateral change in policy, raise, and recognition status.
- The ALJ and Board found multiple NLRA violations (pre-election 8(a)(1), de-recognition, post-election actions, and Shepherd’s discipline), and ordered remedies including a new election; Arkema sought enforcement, which the court denied in part.
- The court ultimately held that pre-election conduct did not support invalidating the election and that Shepherd’s discipline lacked substantial anti‑union animus, denying enforcement of the Board’s remedial order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-election conduct violated 8(a)(1) to set aside the election | Board argued Saltibus and Turley email violated 8(a)(1) | Arkema argued no substantial misconduct and no protected activity | No substantial evidence of 8(a)(1) violation; election not properly set aside |
| Whether de‑recognition and unilateral actions before certification violated 8(a)(5) | Board relied on pre-election violations to support de-recognition | Arkema argued election results not yet certified, actions permissible at own risk | No grounds to invalidate the election or violate 8(a)(5) based on pre-certification actions |
| Whether Shepherd’s discipline was animus-based under Wright Line | General Counsel showed anti-union motive | Arkema argued timing insufficient; no convincing motive | Insufficient evidence of anti-union animus; discipline not shown to be unlawfully motivated |
Key Cases Cited
- Valmont Industries, Inc. v. NLRB, 244 F.3d 454 (5th Cir. 2001) (discrimination burden on General Counsel; protected activity must be shown)
- Burnup & Sims, Inc., 379 U.S. 21 (1964) (employer must show good-faith basis for believed misconduct)
- Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) (rules for evaluating warnings restricting protected activity)
- River Bend Health & Rehab. Serv., 350 NLRB 184 (2007) (warning language analysis for §8(a)(1) violations)
- Wright Line, 251 NLRB 1089 (1980) (burden-shifting framework for anti-union discipline claims)
- Healthcare Employees Union v. NLRB, 463 F.3d 909 (9th Cir. 2006) (timing of actions around election as evidence of animus in some cases)
- Selkirk Metalbestos, Am. v. NLRB, 116 F.3d 782 (5th Cir. 1997) (presumption against setting aside election absent unfair labor practices)
- Dow Chemical Co. v. NLRB, 660 F.2d 637 (Former 5th Cir. 1981) (pre-certification unilateral actions risk-based analysis under 8(a)(5))