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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¹On a related topic, employers frequently wish to distribute letters or memoranda during organizing drives which admonish employees that "harassment" of coworkers is prohibited. We believe that such a reminder during an organizing drive would be lawful only (1) if it reinforces an existing policy prohibiting harassment; (2) does not specifically refer to union activity; and (3) is part of a regular practice of reminding employees about the policy (so that the timing of the reminder is such that it is not clearly directed to the union activity). Overall, the better practice is to use words such as "coercion," "intimidation," and "threaten" instead of "harass" or "harassment" in communications to employees during organizing (as in "we will not tolerate any coercion or intimidation of our employees, whether you are in favor of, or against, union activity").

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