During union organizing campaigns, employers are often confronted with complaints from employees that employee organizers are "harassing" them about signing union authorization cards. Sensitized through years of training on laws prohibiting discrimination and harassment, an employer's first instinct is often to view such complaints under its harassment policy. Employers sometimes also encourage employees to report "harassment" so that appropriate remedial action can be taken.

These instincts can lead to legal trouble for an employer during a union organizing attempt. For example, in late 2008, the Boulder City Hospital found itself in a similar situation. Two or more employees complained to their supervisor about "harassment" by other employees. Specifically, the employees asserted that pro-union employees were soliciting them repeatedly to sign union cards. The employer conducted no additional investigation after receiving these complaints.

In response to the complaints about harassment, the employer's CEO and Human Resources Director decided it would be a "good idea" to remind employees of the harassment policy the employer adopted well before any union organizing activity began. This policy prohibited harassment and discrimination on the basis race, sex, religion, and other forms of illegal discrimination. It didn't mention union activity.

The memorandum the employer posted said: "Please be reminded that harassment or threatening behavior in any degree by or between employees will not be tolderated at Boulder City Hospital." The memorandum then referenced the existing policies by name and number. The memorandum concluded by saying: "If you feel that you are being harassed or threatened in any way, you have the right to talk with Human Resources regarding your treatment."

The NLRB, in a 2-1 decision, ruled that the employer's memorandum was unlawful. See Boulder City Hosp., Inc., 355 N.L.R.B. No. 203 (2010). The majority reasoned that the posting, coming in the midst of union organizing activity and in the context of employee complaints about "harassment," violated employee rights under the NLRA. Persistent union solicitation is protected even if it is annoying or disturbing to the employee being solicited. According to the majority, a reasonable employee could interpret the memorandum as equating such protected solicitation with unprotected harassment, and inviting complaints to management about that conduct.

In his dissent, Member Hayes emphasized that (1) the memorandum was merely a reminder of the harrassment policy, and expressly referenced that policy; (2) the memorandum didn't reference union card solicitation or union activity at all; and (3) there was no evidence that the harassment policy was inconsistently enforced. Member Hayes urged his fellow members to be "cognizant of employers' substantial and legitimate interest in maintaining and communicating a valid anti-harassment policy."