By: Kenneth R. Dolin
In continuing to apply strict scrutiny to workplace communications, the Board in a 2-1 panel decision recently held that an employer acted unlawfully by posting a memorandum shortly after a union election, urging employees to treat each other with “dignity and respect” and reiterating its workplace violence policy, even though the policy itself was lawful and the memorandum expressly acknowledged employees’ Section 7 rights. Care One at Madison Avenue, 361 NLRB No. 159 (Dec. 16, 2014).
The panel majority (Chairman Pearce and Member Schiffer) found the employer did not meet its burden of demonstrating a legitimate basis for issuing the memorandum because: (1) there was no evidence that the referenced threats actually occurred or that the employer attempted to investigate any alleged threats; (2) the memorandum referenced the union election three days earlier and the “differences that arose in the workplace during the union’s campaign”; and (3) the memorandum “suggested that the employer believed that employees did not treat each other with dignity and respect when they engaged in protected union activity.” In these circumstances, particularly since the memorandum was “posted on the heels of the union election and in the wake of several contemporaneous unfair labor practice charges,” the majority found that the employer “promulgated and posted the memorandum in response to the employees’ union activity” and employees would reasonably construe the memorandum to prohibit Section 7 activity. The acknowledgement in the memorandum of the employees’ right to support a union did not prevent a finding of illegality, according to the majority, because the memorandum “failed to make clear that employees also had the right to engage in protected activity in furtherance of those views.”
Member Johnson dissented from the majority’s findings on this issue, stating that the majority gave the memorandum a “manifestly unreasonable reading in light of its text and the language of the indisputably lawful workplace violence prevention policy,” and failed to recognize the legitimate need of employers to guard against workplace violence. Contrary to the majority, Johnson wrote there was “no promulgation in response to union activity”; instead the employer’s memorandum merely “reiterated, cited, attached and incorporated by reference the lawful preexisting workplace violence policy without modification.” Moreover, Johnson observed that the memo was promulgated in response to claimed reports of threats and not in response to union activity and that the references in the memorandum to “respect and dignity” did not broaden or otherwise amend the lawful workplace violence policy. He concluded that employees would not reasonably consider the memorandum in conjunction with the reiterated policy as restricting their Section 7 rights, particularly since the “memorandum acknowledged the employees’ Section 7 rights.”
With this decision, the Board signals that it will closely scrutinize any employer postings concerning prohibitions of “threats” or “harassment,” especially when coming on the heels of a union election campaign, and in the context of other unfair labor practices. Employers electing to post such communications should ensure there is sufficient evidence of harassment to justify the heavy practical burden this Board will place on it to provide evidence that it was motivated by legitimate workplace concerns, and not any union or other protected activity. In this regard, employers should avoid references to recent union or other protected activity, as well as any inference that employees failed to treat other employees with “dignity and respect” merely by engaging in union, or other protected, activity. Finally, to maximize the protection of providing an acknowledgement of the employees’ right to support a union, such an acknowledgement should also make clear that employees have a right to engage in concerted activity in furtherance of those views.