The Changing Definition of Protected Concerted Activity
June 2005
In Lutheran Heritage
Village—Lavonia, 343 NLRB No. 75 (2004), the Labor Board decided late
last year that a rule which prohibited "using abusive or profane language in
the presence of, or directed toward, a supervisor, another employee, a resident,
a doctor, a visitor, a member or a resident’s family, or any other person on
company property (the premises)" was lawful.
by Paul
J. Siegel, Esq.
Jackson Lewis
LLP
Basically, the Labor Board has reversed its previous position and, for the
time being, will no longer find a rule prohibiting "abusive language" unlawful on its face. This kind of rule still may
be unlawful if applied to prohibit employees’
legitimate Section 7 activity, i.e., activities for the employees’ mutual aid
and protection. If the policy were to expressly
prohibit Section 7 type activity, a contrary finding would result.
The Lutheran Heritage Village—Lavonia case
also dealt with a rule which prohibited "harassment of other employees, supervisors
and any other individuals in any way." The Labor Board decided that mere publication
of such a rule was not unlawful because there was:
- [N]o justification for concluding that employees will interpret the
rule unreasonably to prohibit conduct that does not rise to the level of
harassment, or to presume that the [Company] will unreasonably apply it
in that manner.
In the past, a rule prohibiting all forms of "harassment" probably would
have been found unlawful on its face.1
It appears the Labor Board will, in the future, adopt a more realistic approach
toward all employer rules. In the Lutheran Heritage Village—Lavonia case, the Labor
Board said:
- [W]here, as here, the rule does not refer to Section 7 activity, we
will not conclude that a reasonable employee would read the rule to apply
to such activity simply because the rule could be interpreted that way. To take a different analytical approach would require
the Board to find a violation whenever the rule could conceivably be read
to cover Section 7 activity, even though that reading is unreasonable. We
decline to take that approach.
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