NLRB Rules Employer Memo Violates NLRA

National Labor Relations Board (NLRB) ruled that a New Jersey nursing home violated federal law by posting a memo titled ‘Teamwork and Dignity and Respect’ that asked for staff to get along just days after a turbulent union election.

NLRB vs Care One at Madison Avenue

The employee union, United Healthcare Workers East (1199SEIU), claimed the memo disobeyed the National Labor Relations Act (NLRA) and the NLRB ultimately agreed. The memo referenced the union election and stated that some employees had been threatened and harassed. The memo went on to say that threatening behavior and harassment would not be tolerated and that the company’s workplace violence policy would be enforced. Because of this the NLRB felt that the memo was displayed in response to the recent union activity.

The NLRB noted that “workers have a statutory right to advocate for a union even if the activity ‘annoys or disturbs’ other employees.”

The NLRB maintained the employer did not present valid evidence that any threats or harassment actually took place or that they even attempted to investigate the alleged threats. The NLRB made the determination that employees could reasonably interpret the memo to ban union activity which is a violation of the NLRA.

The employer was ordered to publically display a notice formally revoking the memo, inform employees of their rights under the NLRA, and lay out the steps they will take to safeguard future union organizing activities.

What Employers Need to Know

  • Employers should review their handbooks, policies, and employee agreements to decide if the terminology could be understood as interfering with an employee’s Section 7 rights. The NLRB interprets any vagueness in employee handbooks and policies against the employer, even if there isn’t any evidence that the policy restricted an employee’s actions.
  • Employers may not prohibit employees from discussing salary, benefits, or compensation.
  • Act with discretion during times of union organizing. If policy revisions are necessary, an employer should take action before it has any knowledge of union organizing activity. If an employer is aware of union organizing, they should consult with labor counsel before making any changes.

National Labor Relations Act (NLRA)

The NLRA, enacted in 1935, is a federal law that “protects the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.”

Section 7 states “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].”

What is Protected Concerted Activity?

Protected Concerted Activity is defined as “a legal term used in labor policy to define employee protection against employer retaliation. It is a legal principle under the subject of the freedom of association.” An example of protected concerted activity is when two or more employees talk to their employer about wages, benefits, working conditions or other conditions of their employment. An individual employee may also engage in protected concerted activity if (s)he is speaking up for a group of employees.

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