Academic journal article Harvard Law Review

Labor Law - Sexual Harassment and Collective Action - NLRB Holds That the NLRA Protects Workers Seeking Colleagues' Assistance in Filing Sexual Harassment Complaints: Fresh & Easy Neighborhood Market, Inc

Academic journal article Harvard Law Review

Labor Law - Sexual Harassment and Collective Action - NLRB Holds That the NLRA Protects Workers Seeking Colleagues' Assistance in Filing Sexual Harassment Complaints: Fresh & Easy Neighborhood Market, Inc

Article excerpt

Labor law, which provides an avenue for the collective action of employees, and employment law, which allows persons to bring individual grievances against their employers, both govern the American workplace but often are seen as antagonistic to each other. (1) Section 8(a)(1) of labor law's foundational statute, the National Labor Relations Act (2) (NLRA), prohibits employers from "interfer[ing] with, restrain[ing], or coerc[ing] employees" (3) in their exercise of Section 7 rights to "engage in ... concerted activities for the purpose of ... mutual aid or protection." (4) In 2004, the National Labor Relations Board (the Board or NLRB (5)) ruled that the NLRA's protections did not cover an employee seeking aid from coworkers when pursuing an individual sexual harassment complaint. (6) Recently, in Fresh & Easy Neighborhood Market, Inc., (7) the Board overruled this holding, (8) opening up NLRA protection to cover the collective action of employees asserting their individual rights under Title VII of the Civil Rights Act of 1964 (9) and other employment law statutes. In so doing, the Board partially mended weaknesses in employment law's individual-rights regime and provided an avenue for employees to take a more active role in shaping their companies' discrimination policies.

In August 2011, Margaret Elias, a cashier at Fresh & Easy Neighborhood Market, left a message on a breakroom whiteboard asking her supervisor if she could be trained in TIPS, a program related to alcohol sales. (10) The next day, Elias found the message defaced by a coworker who had changed "TIPS" to "TITS" and drawn a worm or peanut-shaped cartoon urinating on her name. (11) In response, Elias notified her supervisor and filed an internal sexual harassment complaint with the company's employee-relations department. (12) To support her claim, Elias sketched a picture of the whiteboard drawing and had two female coworkers sign it. (13) One coworker subsequently stated that she signed the document in response to Elias's "bullying," (14) while the other felt "intimidated" by Elias. (15) The company's employee-relations manager investigated the incident, asking Elias why she felt the need to obtain coworker signatures and instructing her to refrain from obtaining further statements while the manager completed the investigation. (16) The company disciplined the employee who had altered the whiteboard message and took no adverse action against Elias in response to complaints filed against her by coworkers. (17) The month after the incident, Elias filed an unfair labor practice charge against her employer, alleging that the employee-relations manager infringed on her Section 7 rights by interrogating her about her statements to coworkers and asking her to refrain from obtaining witness statements. (18)

The administrative law judge (ALJ) found that the manager's statements to Elias did not violate the NLRA. (19) Following Board precedent articulated in Holling Press, Inc., (20) the ALJ stated that Section 7 did not protect Elias's actions because he saw "Elias'[s] outrage ... [as] personal and ... not shared by the other employees," failing to satisfy the requirement that protected actions be concerted and undertaken for mutual aid or protection. (21) Since Elias's gathering of signatures was not covered by the Act, the manager's request that Elias refrain from such activity "was not meant to deprive her of her right to engage in concerted activities" in violation of the Act. (22) The acting General Counsel of the NLRB appealed the ruling. (23)

The Board affirmed the ALJ's ruling that the employer did not violate the NLRA but reversed his ruling that Section 7 did not protect Elias's actions taken in response to the alleged sexual harassment. (24) In reaching its holding on the Section 7 question, the Board engaged in a two-pronged analysis, considering whether Elias's activity was "concerted" in nature and undertaken for "mutual aid or protection. …

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