By Sarah K. Hamilton, Esq.

In Norquay Construction, Inc., 359 NLRB No. 93 (2013), the Board recently held that an employer violated Section 8(a)(1) of the National Labor Relations Act when a project manager employed by the non-union company physical assaulted a union representative in response to his Section 7 protected activity. Notably, the Board ordered that if, in compliance proceedings, the union can show that its representative incurred medical expenses and lost pay and benefits as a result of the assault, then he should be reimbursed for such expenses and made whole for loss of pay and benefits.

In this case, Thomas DeMott was a union employee and representative for the union representing a subcontractor working on a construction jobsite. The employer was a non-union general contractor for the project and its project manager maintained an office in a trailer at the jobsite. After experiencing significant disruptions by individuals entering the trailer without an appointment, the project manager posted a sign prohibiting solicitation without an appointment.

On the day at issue, the union representatives approached the project manager’s office without making an appointment to discuss whether “area standards” were being observed. Rather than decline to meet with them, the project manager motioned them into the office. The union representatives proceeded to ask for subcontracting information on some of the carpentry-related work. In response, the project manager told them to look up the information from a publicly-available source, complained about union representatives routinely coming to his office, and told them to leave. A heated discussion ensued, during which Respondent’s project manager physically pushed one of the union representatives out of the office, causing bodily injury.

The Board rejected the employer’s defense that the company maintained an exclusionary property interest in the trailer, noting that the union representatives were in the process of leaving the property at the time of incident. Accordingly, the Board found that the physical assault of the union representative in response to his protected activity violated Section 8(a)(1), and awarded tort-like damages to the union representative.