In what some may consider a stunning decision, the NLRB recently held in Care One at Madison Avenue, LLC, 361 NLRB No. 159, that an employer’s enforcement of its workplace violence policy violated its employees’ rights under Section 7 of the National Labor Relations Act.

After completing a recent union election, Care One issued a memorandum in response to reports of threats in the workplace that reminded employees that threats, intimidation and harassment were prohibited, and that anyone engaging in improper conduct would be subject to discipline.  Care One attached its Workplace Violence Prevention Policy to the memorandum. So far, so good, right? Wrong.

Unlawful, said the Board. Because the memorandum referred repeatedly to the past union election, and there was no evidence that Care One actually investigated whether said threats occurred, the Board reasoned that it was likely issued to restrict the exercise of Section 7 rights, and that employees would reasonably construe the language to prohibit Section 7 activity.  Although not surprising considering the current Board, the decision nevertheless promises to create some potholes that employers will have to navigate around.

Violence and threats of violence have traditionally been a line that employees exercising Section 7 rights generally cannot cross.  Although the Board did not go so far as to give an approval of violence or threats, it narrowed the ways, and circumstances under which, employers may enforce their workplace threats and violence policies.  Employers need to do a careful analysis before enforcing such policies, and when they do enforce them, they must make sure they are enforced in a neutral way so as not to run afoul of the Board.