DECISIONPOINT THE SITUATION (continued from page 1) The memorandum included the following language:


I want everyone to be on notice that threats, intimidation, and harassment will not be tolerated at [the Company]. We will enforce the Workplace Violence Prevention policy to keep our workplace free


from such improper conduct. Anyone engaging in such conduct will be subject to discipline, and, depending on the facts of the situation, such discipline may include suspension or discharge for a first offense. It is very disappointing that I have to post a memo warning a few people that they will be disciplined if they threaten others. Threats should never occur in a family environment where we care about one another and should be treating each other with dignity and respect.


Following its posting, the union filed a complaint with the National Labor Relations Board (NLRB) arguing, among other things, that the memorandum was unlawful because it was promulgated in response to union activity and because employees would reasonably construe it to prohibit such activity.


THE DECISION


The NLRB, in a 2-1 panel decision, 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‘ rights under Section 7 of the National Labor Relations Act.


The panel majority 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.‖


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.‖


LEARNING AND KEY CONSIDERATIONS


The jury‘s verdict in this case represents a clear rejection of the town-employers attempts to argue that her complaints regarding the assault and harassment had nothing to do with her termination. While the outcome in these matters hinges largely upon the credibility of the witnesses at trial and the extent to which the jury believes that any other legitimate business factor was the reason for the adverse employment action, this case speaks to a larger lesson--one of proportionality. Here, the defendant‘s asserted bases for the termination decision appeared, to the jury, to be petty and contrived.


The defendant introduced evidence that several months prior the plaintiff filing a complaint, the plaintiff's supervisor met with her and verbally reprimanded her for rudeness toward town residents. The defendant then argued that a second meeting and reprimand that occurred just after she filed a complaint was a merely a coincidence--and not in retaliation for the plaintiff's complaint. Instead, the defendant asserted that the plaintiff‘s assault complaint triggered a chain of events that uncovered a number of additional problems with the plaintiff's job performance which had not been known before, including dishonesty. These arguments were rejected by the jury.


Employers must take any and all complaints of assault and harassment in the workplace seriously. Every investigation must be thorough and fair, to both parties. While such an investigation may lead an employer to uncover other issues with performance, the employer must be measured in its response to those issues. Proportionality is required. If another employee may only be verbally reprimanded for a certain behavior, an employee who has complained of harassment must also be treated the same way.


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