United States: NLRB Deems Employer Unlawfully Distributes a Workplace Violence Memo After Union Organizing Activity

Your intentions may be pure, but your actions during or after union organizing activity could lead to your company running afoul of the National Labor Relations Act (the Act) according to the National Labor Relations Board (NLRB). The NLRB has recently emphasized this message in yet another 2-1 decision ruling that a nursing home employer's attempt to restore a harmonious workplace environment in posting a memorandum and workplace violence policy, following a union election and asking employees to treat each other with respect and dignity, was an unfair labor practice.

In the case, after the union election, the company posted a memo on the employee bulletin board entitled Teamwork and Dignity and Respect, along with a copy of the pre-existing workplace violence policy. The memo referenced the recent election ("Now that the NLRB Election is behind us, I was hoping that everyone would put their differences behind them and pull together as a united team. Even though we may have had different opinions on the Union, I thought that after the election we would treat each other with dignity and respect and reunite . . . ."), mentioned a few employees not treating fellow teams members with dignity and respect, and reports that some team members had been threatened. The memo also stated in part that threats, intimidation and harassment will not be tolerated, that the workplace violence policy would be enforced, and that anyone engaging in such conduct will be subject to discipline, including suspension or discharge.

In analyzing the case, the NLRB stated that an employer violates the Act by maintaining a work rule that explicitly restricts employees' protected union activities. If, however, the work rule does not explicitly restrict protected activities, it can still be deemed a violation of the Act if (1) employees could reasonably construe the language of the rule to prohibit protected union activities, (2) the rule was developed in response to union activities, or (3) the rule has been applied to restrict the exercise of union activities.

The NLRB ruled that the memo, by its express and repeated references to the recent union election, was developed and posted in response to the union activities. The NLRB stated that, while it shares concerns regarding workplace violence, it does not accept an employer's claim of violence at face value when protected rights are implicated. The NLRB concluded that the company lacked a legitimate basis for issuing the memo because there was no evidence of actual threats being made, that the company attempted to investigate any alleged threats, or that anyone was disciplined for making threats.

The NLRB further determined that employees could reasonably construe the memo to prohibit union activities. According to the NLRB, employees would understand the memo's references to the recent election and their purported failure to treat each other with "dignity and respect" during the union campaign as an extension of the workplace violence policy to explicitly target protected activity in support of the union. In sum, the NLRB found that the memo did not merely remind employees of the existing workplace violence policy, but specifically extended it to prohibit union organizing activity, and intimated that employees who engaged in such activity would be subject to discipline. Thus, the company violated the Act by posting the memo because (1) it promulgated a rule in response to union activity, and (2) employees would reasonably construe it to prohibit such activity.

As we have recently reported, the NLRB is dramatically changing the labor law landscape and flyspecking employer policies and practices that could even remotely be construed as restricting an employee's rights under the Act. Employers should carefully analyze its anticipated actions in the midst of union organizing activities and consult with experienced labor counsel before taking what would otherwise seem to be union neutral actions to address employee issues. This is even more critical because even if an employer wins an election, the NLRB has a practice of setting aside election results and requiring a "do-over" if there is a contemporaneous unfair labor practice which is deemed to have affected the election results.

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