The NLRB has ruled that an employer is liable to lost wages for a union representative who allegedly suffered injuries after being pushed down a flight of stairs at a work site. The case is Norquay Construction, Inc., 359 NLRB No. 93 (April 16, 2013).
The facts involved a construction project. The general contractor was non-union but employees of a subcontractor were represented by a union. The union’s collective bargaining agreement with the subcontractor allowed access during working hours where employees were working so long as the union made reasonable efforts to notify the subcontractor of their presence and did not interfere with work. At a construction site, two union representatives approached the non-union site management at a trailer where the project manager had an office. The union representatives, who had not made an appointment, asked for subcontractor information related to work being performed on the project. The project manager told the union representatives to look it up themselves on a publicly available website, and then told them to leave. One union representative then stated that the site could be picketed. The other union representative stated that picketing would occur only if a violation of area standards had been found (backtracking on the threat to picket).
The project manager “loudly and profanely” demanded that the union representatives leave, at which point they both walked toward the exit. The project manager then pushed one of the union representatives from behind, sending him down the trailer’s metal steps where he struck his hand and neck on the railing. The police were called but declined to arrest anyone.
The union representative (not the union itself) filed an unfair labor practice charge alleging that the assault violated Section 8(a)(1) of the Act. The Administrative Law Judge dismissed the allegation noting that there was no right, contractual or otherwise, for the union representatives to be on site:
[The Employer] had an exclusionary property interest in its construction trailer, which particularly given the purpose and circumstances of [the union representatives'] October 1, 2010 visit, permitted [the Employer] to deny them access. Alternatively, [the Employer set reasonable and nondiscriminatory restrictions on [the union representatives'] access to its construction trailer, the failure to follow which lost the two representatives access entitlement. Because [the union representatives] made no effort to schedule a visit before entering the construction trailer, they cannot claim that their ejection from it violated their contractual right of access….In these circumstances while [project manager's] violent expulsion of [union representative] from the construction trailer was repugnant and inexcusable and while it may have transgressed civil or criminal laws, it did not violate the Act.
In other words, the purpose of the visit did not implicate the Act as the union representatives did not have a right to be there, and there was other remedies available for the assault. As to the injuries suffered, the Administrative Law Judge noted the union representative “had existing back and hip problems having had prior neck surgery with a 70-day work absence.”
The NLRB disagreed, finding that the assault violated the Act. The Board noted that the Act protects “actions in furtherance of an area-standards objective…” and that “harassing, or physically assaulting union agents engaged in such activity” has been found to be a violation of the Act. The Board cited Roger D. Hughes Drywall, 344 NLRB 413, 415 (2005) in support of this proposition, although that case involved an employer calling police and harassing union agents who were picketing on public property. The Board held that the property interests were not an issue:
The question of [the Employer's] asserted right to exclude the union representatives from the trailer is irrelevant to the disposition of this case because they were leaving at the time of the assault.
This is somewhat contorted reasoning, and begs the question of whether the action, which was not witnessed by any employees, would not have violated the Act if the union representatives had refused the request to leave the premises. The union representatves’ activity seems less than clearly protected: there was no existing dispute and the union representatives merely were asking for information the employer had no legal obligation to provide. The Board seems to have extended the Act’s protection to the mere assertion of a right that is related to the Act.
Despite the tenuous connection to the Act, the Board ordered a “make whole” remedy for the union representative but noted that “it remains unsettled whether [the union representative] suffered bodily injury as a result of the assault” and left the matter to a compliance proceeding.
While no one can condone a physical assault, the case stands for the proposition that a mere allegation that physical harm resulted from some allegation is a matter for the NLRB when the union representatives were merely at the site to solicit information unrelated to any existing dispute. The union representative has other remedies he could pursue instead of having the Board now decide in a compliance proceeding whether he has suffered physical injuries.