Hostile Work Environment and NLRB Case Analysis

Introduction

The term "hostile work environment" carries a wide range of meanings and definitions. How precisely it is defined varies based on the role or position of the person involved, their views on employer rights, employee rights, and unions, as well as one's general sense of what is and is not acceptable in workplace interactions. Some individuals cast too wide a net when defining the word "hostile." Regardless, litigation can and does arise from these events — whether isolated or continuous — and union-related situations are often decided by the National Labor Relations Board (NLRB).

This paper identifies an NLRB case involving a hostile work environment, suggests risk management strategies that could mitigate or prevent situations from escalating into lawsuits or NLRB proceedings, and offers additional relevant analysis. The American Showa/Teamsters case demonstrates that even when an employee provably and admittedly engages in improper behaviors that could be construed as hostile or otherwise problematic, acting against someone for forming a union rarely ends well for the employer.

Case Background: The Hankins Incident

The case centers on a man named Hankins, who had a strong work history at a company that supplied parts for Honda vehicles. Tensions began to emerge due to several factors. One was that Hankins was aware that Honda was unionized and recognized significant parallels between Honda and his current employer — Honda was one of the company's main clients, and employees even wore uniforms similar to Honda's. Hankins routinely engaged in union-organizing efforts at his new employer, though at first this was not treated as a major problem.

The situation began to deteriorate through a series of incidents. An acquaintance had performed automotive work for Hankins and had agreed to be paid with a case of beer. Rather than receiving the beer outside of work, the acquaintance brought it to the workplace, where Hankins stored it in the break room. When Hankins returned, the beer had been locked in a cooler. A manager informed him that alcohol should not be on company property, but Hankins was not formally punished and removed the beer upon request.

Shortly afterward, there was a discussion about the beer incident, and questions arose about whether a vendor employee named Smith had been involved in the temporary confiscation. According to the record, she had not been involved. However, Hankins bumped into Smith rather forcefully in the break room, and Smith took offense at being jostled. Hankins apologized at the time but privately felt Smith was overreacting. Later, he approached her to offer what he considered a more sincere apology. Smith was unreceptive and told him the conversation was "over," but Hankins persisted for a time before eventually dropping the matter — though only after being told several times to stop.

Although it was not immediately communicated to Hankins, he was subsequently transferred, apparently due to an internal business need. He was later summoned to be disciplined for the exchange with Smith and was sent home for a three-day suspension. During the suspension, one manager called him in — over the objection of another manager — and this meeting resulted in Hankins's termination on three grounds. First, Hankins had previously worked for Honda but had not disclosed that employment on his job application. It emerged during this meeting that he had voluntarily left Honda rather than face a peer review board. Fine print on the application required all employment history to be disclosed, which Hankins claimed he had not read. Second, he was fired for allegedly threatening Smith. Third, he was terminated for engaging in union-organizing activities — a reason he initially denied before conceding mid-conversation that he had, in fact, been doing so.

In the end, the NLRB ruled against the employer. The Board did acknowledge that Hankins had not disclosed his Honda employment despite the application's clear requirement to do so. Hankins also had a prior felony conviction that he had similarly omitted. However, the NLRB rejected these as legitimate grounds for termination because testimony about whether these omissions were the primary reason for the firing was inconsistent throughout the proceedings, including during the actual termination meeting.

Regarding the accusations from Smith, the NLRB concluded that the investigation into that incident was woefully shallow and lacked credible evidence sufficient to support termination. As for the union-organizing activities, the Board determined that opposition to those activities was the employer's primary motive and that the other stated reasons were used to buttress a decision that had already been made. The NLRB affirmed that union-organizing activities cannot lawfully be used as a basis for termination, whether that reason is stated explicitly or not. The Board ordered that Hankins be reinstated given the totality of the circumstances (NLRB, 2016).

NLRB Ruling and Employer Liability

Hankins was not without fault. He obscured his employment history and felony status, and he clearly did not handle the situation with Smith well. Nevertheless, the employer clearly sought an excuse to remove him and stretched both its motives and the available evidence to do so.

As for what the employer should have done differently, three risk management strategies warrant consideration. First, the job application should clearly state — in standard-sized print — what is required in terms of employment history. If the employer wants all prior jobs listed without omission, that requirement should be stated plainly and prominently. Regarding criminal record status, the EEOC currently scrutinizes blanket criminal history inquiries, but employers should ask for criminal record information to the full extent permitted by law (EEOC, 2016).

A second risk reduction strategy is to ensure that workplace investigations are conducted in a timely, thorough, and impartial manner. Critically, investigations should be carried out by individuals who are not personally involved in the situation — not the managers of the accused or of the complainant. This structure helps preserve impartiality and prevents emotions or ulterior motives, such as anti-union sentiment, from distorting the process.

The third strategy is to establish clear, well-documented policies regarding harassment, improper conduct, and workplace behavior. Had this employer not been so transparently anti-union in its conduct, several legitimate disciplinary actions might have been available — including addressing the omissions on Hankins's application, his conduct toward Smith, and his dishonesty during the investigation. A robust policy framework, applied consistently and without hidden agendas, gives employers a legally defensible foundation for disciplinary decisions (HR Specialist, 2016).

Conclusion

NLRB. (2016). American Showa w/ Teamsters. National Labor Relations Board. Retrieved 19 June 2016, from https://www.nlrb.gov/case/08-CA-031106