In Good Samaritan Medical Center v. National Labor Relations Board, the United States Court of Appeals for the First Circuit reversed the decision of the National Labor Relations Board (“NLRB”) requiring a hospital in Massachusetts to rehire an employee it had terminated for violating the hospital’s general civility policy when he challenged a union representative during her presentation about union membership.    In reaching this decision, the First Circuit closely scrutinized the record and concluded that the NLRB overlooked substantial evidence revealing that the hospital terminated the employee, not because he voiced opposition to union membership, but due to the rude and intimidating manner in which he did so.  The First Circuit recognized that the hospital was entitled to enforce its civility policy (which requires employees to treat coworkers with respect, patience and courtesy, and to refrain from abusive and disruptive behavior), and that the violating employee was not immune from termination solely because the discussion in which plaintiff was engaged when he misbehaved pertained to union membership.  This decision should provide some comfort for all employers who have hesitated to terminate an employee because the employee’s otherwise terminable misconduct is connected, even tangentially, to activity protected by the National Labor Relations Act (“NLRA”).

Section 7 of the National Labor Relations Act (“NLRA”) grants employees the right to form and join unions and the right to refrain from joining a union.  See 29 U.S.C. §157.  Section 8(a)(1) of the NLRA prohibits an employer from interfering with, restraining, or coercing employees in their exercise of these rights.  See 29 U.S.C.§ 158(a)(1).  Employers are expressly prohibited from discriminating “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” See 29 U.S.C. §158(a)(3).   Plaintiff Camille Legley (“Legley”) claimed that the hospital violated this provision of the NLRA when it terminated him after he challenged certain statements made by Darlene Lavigne (“Lavigne”), a long-term employee of the hospital, about union membership during his new hire orientation.  Specifically, when Legley understood Lavigne to say that he had to join the union, he objected by interrupting her and speaking to her in a rude and aggressive manner.  While the description of what transpired at the meeting varied from witness to witness, the record revealed that the conversation escalated with both Legley and Lavigne becoming irritated.  After the meeting, Lavigne contacted the hospital’s human resources representative and complained that Legley “really gave [her] a hard time.”  Lavigne also called her union delegate and complained that Legley was very rude during the orientation and repeatedly interrupted her.  Lavigne cried during this telephone call when reporting what had transpired.  Recognizing that Lavigne was extremely upset by how Legley spoke to her, the union delegate contacted the hospital’s facilities manager and reported “how disruptive Legley was at the meeting and how upset he got at Lavigne.”  Based on what was reported to them, the hospital’s manager and human resources manager, citing the hospital’s general civility policy, decided to terminate Legley for his disrespectful behavior during the orientation.

Following a hearing, an Administrative Law Judge (“ALJ”) concluded that both the hospital and the union violated Section 8 of the NLRA by terminating Legley’s employment.  In reaching his conclusion, the ALJ applied the holding in Atlantic Steel Co., 245 N.L.R.B. 814 (1979), which focuses on whether an employee engaged in conduct normally protected by the NLRA  loses the benefit of that protection because his conduct is “opprobrious” or offensive.  The ALJ concluded that Legley did not act in an overly aggressive manner or make any threatening or profane statements.  Instead, the ALJ concluded that “at most, both Legley and Lavigne raised their voices when he said he didn’t have to become a union member and she said that he did.”  The ALJ found that nothing that Legley said or did at the orientation compelled a conclusion that he lost the protection of the NLRA as a result of any misconduct on his part.  Concluding that Langley’s statements about union membership and the tone in which he made them could not be “disentangled,” the ALJ concluded that the hospital’s decision to terminate violated the NLRA.  The NLRB affirmed this decision and ordered the hospital to reinstate Langley and awarded Langley back pay damages.

The First Circuit reversed this decision.  Recognizing that Legley engaged in activity protected by the NLRA by asserting his right not to join a union, the First Circuit opined that “the question is whether Legley was discharged because of his protected activity or for some other, lawful, reason.”  Criticizing  the NLRB for ignoring “substantial evidence” that the hospital fired Legley because of his bad behavior, not due to his skepticism towards the union, the Court engaged in a thorough review of the testimony elicited during the hearing before the ALJ in an effort to determine what actually motivated the hospital’s decision.    The First Circuit found that the ALJ’s application of the holding in Atlantic Steel and focus on whether Legley’s misconduct was bad enough to warrant the loss of NLRA protection was a mistake.  Instead, the First Circuit reasoned that the ALJ should have applied the analysis set forth in Wright Line, 251 N.L.R.B. 1083 (1981), which focuses on whether an employee was terminated because of the protected conduct or because of his unprotected behavior.  Analyzing the testimony provided by the witnesses involved in the decision to terminate, the First Circuit found that “their only concern was Legley’s difficult interaction” with Lavigne at the orientation, not with the fact that he voiced skepticism about joining the union.   Accordingly, the First Circuit reversed the NLRB’s decision and upheld the hospital’s decision to terminate Legley.

The First Circuit’s decision in Good Samaritan Medical Center v. National Labor Relations Board should provide some comfort to employers confronted with difficult personnel decisions involving employee misconduct that is closely connected with conduct that is protected by the NLRA.   Following this decision, employers should find comfort in the fact that both the NLRB and the Courts should longer summarily conclude that a termination decision violates the NLRA simply because an employee’s misconduct is tied to protected activity.  Instead, this decision reflects the need for the NLRB and the Courts to closely scrutinize the facts underlying a termination decision to ascertain the actual motivation for the decision.  So long as the facts reveal that the employer reasonably believed the employee engaged in misconduct and the decision to terminate for such misconduct is consistent with the employer’s policies and practice, the employer’s business decision should be upheld.

A new post on the Management Memo blog will be of interest to many of our readers in the health care industry: “‘A Day Without’ Actions – How Can Employers Prepare?” by our colleagues Steven M. Swirsky and Laura C. Monaco of Epstein Becker Green.

Following is an excerpt:

[T]he same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by taking the day off from paid and unpaid labor, and by wearing red – which the organizers note “may be a great act of defiance for some uniformed workers.”

Employers should be prepared to address any difficult questions that might arise in connection with the upcoming “Day Without Women” strike: Do I have to give my employees time off to participate in Day Without events? Can I still enforce the company dress code – or do I need to permit employees to wear red? Can I discipline an employee who is “no call, no show” to work that day? Am I required to approve requests for the day off by employees who want to participate? As we explained in our prior blog post, guidance from the National Labor Relations Board’s General Counsel suggests that an employer can rely on its “lawful and neutrally-applied work rules” to make decisions about granting requests for time off, enforcing its dress code, and disciplining employees for attendance rule violations. An employer’s response, however, to a given employee’s request for time off or for an exception to the dress code, may vary widely based upon the individual facts and circumstances of each case. …

Read the full post here.

Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Acting Chair Dissents Point to Likely Changes to Board Election Rules and Employee Handbook and Email Standards.”

Following is an excerpt:

NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of these cases, Miscimarra highlighted his earlier opposition to the majority’s changes in long standing precedents and practices. …

Read the full post here.

The increased use of portable electronic devices in the workplace and the popularity of social media pose unique challenges for health care employers, particularly when the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) conflict with the NLRB’s position on policies that could infringe upon an employee’s right to engage in concerted activity under the NLRA.

HIPAA governs the use and disclosure of protected health information (“PHI”) by health care providers. HIPAA violations may occur when health care employees post images of patients or patients’ records or vitals on social media. Oftentimes, the disclosure is inadvertent. For example, sharing a photo of co-workers in the workplace without realizing that a patient’s file was captured in the photo could result in the unauthorized disclosure of PHI. HIPAA violations may also occur when an employee shares a positive patient experience on social media, with or without an image, as a nursing student recently did to support a three year old who was fighting cancer.

The NLRA applies to all employers, both union and non-union. Section 7 of the NLRA protects “concerted activity,” which includes an employee’s ability to form, join, or assist a union; choose representatives to bargain with the company on their behalf; and act together with other employees for mutual benefit and protection. In some circumstances, recording activities in the workplace may be protected, concerted activity.

Recently, the NLRB in Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), held that the company’s no-recording policy unlawfully restrained employees’ Section 7 rights. In doing so, the NLRB held that “[p]hotography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” Thus, an employer may not lawfully adopt a work rule prohibiting employees from workplace recording if the employees are acting in concert for mutual aid and protection and the employer cannot demonstrate an overriding business interest. The Board specifically stated that the employer may not prohibit employees from recording the following: protected picketing, unsafe equipment or workplace conditions, discussions with others about terms and conditions of employment, the inconsistent application of employer rules, and recordings that preserve evidence for later use in administrative or judicial forums in employment-related actions.

The Board, however, acknowledged that employers may be able to establish an overriding business interest to justify restrictions on workplace recordings. The NLRB explained, “[W]e do not hold that an employer is prohibited from maintaining any rules regarding recording in the workplace. We hold only that those rules must be narrowly drawn, so that employees will reasonably understand that Section 7 activity is not being restricted.”

Health care employers should be able to demonstrate such an overriding business interest to support policies restricting workplace recordings and social media use given their obligations to protect patient privacy and comply with HIPAA.

In fact, the NLRB previously upheld a recording restriction implemented to protect patient privacy in Flagstaff Medical Center, 357 NLRB No. 65 (Aug., 26, 2011), a decision which was upheld by the U.S. Court of Appeals for the District of Columbia. In that case, the NLRB ruled that a hospital’s policy prohibiting the recording of images of patients, hospital equipment, property, or facilities was lawful because “the privacy interests of hospital patients are weighty,” and the hospital had a “significant interest in preventing the wrongful disclosure of individually identifiable health information.” The Board in Whole Foods acknowledged the Flagstaff ruling and distinguished its rule from the one in Whole Foods, noting that the business interests at issue in Flagstaff were more pervasive and compelling. Thus, the implementation of narrowly tailored no-recording policies in the health care setting should pass the NLRB’s scrutiny.

The Board should find that health care employers’ interest in protecting patient privacy and complying with federal law justifies appropriately tailored restrictions on workplace recordings. Therefore, to prevent the disclosure of PHI and to protect patient privacy, health care employers should implement policies restricting employees from recording and sharing patients’ images, conversations, or information on social media. Such policies should restrict employees from recording (video, still images, or audio) in patient rooms or settings, and sharing patient images or information on social media. Restricting recordings in non-patient settings (e.g., break rooms, cafeterias, and administrative offices) should be limited to those that will not infringe upon employees’ Section 7 rights.

Takeaways

  • Review and revise no-recording and social media policies to ensure that they are narrowly tailored to protect patient privacy and the disclosure of PHI. Be sure that the policies clearly explain that any restrictions on workplace recordings are due to patient privacy and HIPAA obligations and are not intended to infringe upon employees’ Section 7 rights.
  • Consider revising existing policies on HIPAA compliance to address the use and restrictions of social media.
  • Regularly train employees on recording and social media policies and on HIPAA compliance to ensure that every employee has a working knowledge of the foundational privacy and security regulations issued under HIPAA, and understands how such privacy can be compromised by workplace recording and social media use.
  • Consult with counsel before disciplining an employee for making a workplace recording or posting patient information on social media.

A version of this article originally appeared in the Take 5 newsletter Five Key Issues Impacting Health Care Employers.”

In recent years, unions representing employees in health care facilities have engaged in activities during contract negotiations to pressure employers into settling, while limiting the cost of engaging in strike activity in the form of lost wages to union employees. The two most common forms of such activity used by unions are informational picketing, and short, sometimes intermittent, strikes, usually lasting only a day or two.

Informational Picketing

Informational picketing is yet another issue on which the NLRB has recently overturned precedent, in this case favoring union rights over patient rights and health care institutions’ property rights.

Typically, informational picketing is done by employees on their own time, either before or after their scheduled shifts and/or during their break times, or by non-employees. Thus, the picketing does not involve an actual work stoppage. Nonetheless, it can be disruptive of health care operations, involving noise, distraction, and perhaps physical interference with movement in and out of the affected institution. The NLRB’s long-standing rule on informational picketing balanced the employees’ right to picket against the needs of patient care and held that a hospital may lawfully prohibit on-premises picketing by both employees and non-employees. Thus, the noise and distraction of the picketing would usually be held at locations far removed from areas where patients, their families, and on-duty caregivers were located, such as public sidewalks at the entrances to driveways or parking lots.

This past August, the NLRB, in its decision in Capital Medical Center and UFCW Local 21, 364 NLRB No. 69 (August 12, 2016), overturned its long-standing rule and held that hospitals now have the burden of showing that a rule prohibiting on-premises picketing in non-patient care areas is necessary to avoid disruption of health care operations or disturbance of patients. The NLRB noted that such a rule would be examined on a case-by-case basis, and the Board clearly indicated that the measurement of disruption would take into account the actual conduct of the pickets. This ruling will make it extremely difficult for an employer to determine in advance whether a ban on on-site picketing would violate the National Labor Relations Act (“NLRA”).

The activity in Capital Medical Center involved two employees standing outside the main lobby entrance holding picket signs. They were not patrolling or chanting. The NLRB found that such on-premises picketing did not lose the protection of the NLRA. The Board’s ruling makes clear that the facts of this case are not the outer limit of what behavior would stay within the protection of the NLRA. For example, there is no clear explanation of an employer’s right to restrict informational picketing, particularly as to exterior locations, such as building entrances or parking lots. Employers should note that this decision does not apply to non-employee pickets nor does it apply to picketing by striking workers.

Takeaways (Informational Picketing)

Health care employers facing potential informational picketing should, well in advance, identify the areas both inside and outside the institution that are sufficiently close to patient care areas that any form of picketing, even if peaceful, would disturb patients or disrupt patient care, and amend rules accordingly. A record of the facts supporting such a rule should be made at that time. In addition, if, during the course of informational picketing, the conduct of the pickets becomes disturbing to patients or disrupts patient care, health care employers should collect evidence supporting that conclusion and take steps to stop the disruptive behavior.

Capital Medical Center has petitioned the U.S. Court of Appeals for review of the Board’s decision and the Board cross-petitioned for review, so watch for future developments on this issue.

Short-Term Strikes

Unions representing health care employees have frequently used one- or two-day strikes against hospitals and other health care institutions as a way to force the target institution to give in to unions’ bargaining demands or spend millions of dollars in replacement workers and other preparations to ensure proper care for their sick patients, while the strikes have minimal impact on the wages of the nurses or other health care workers who only lose a day or two of pay.

These strikes typically involve serving a notice under Section 8(g) of the NLRA that tells the institution that the employees will be on strike for a single 24-hour period and includes the employees’ unconditional offer to return to work at the end of that period. This forces the institution to scramble to find qualified temporary replacement workers, vet them, train them, and orient them. In order to do so, the institution typically needs to contract with the replacement workers for at least five days and at significant expense. Once the strike is over, often nothing has been resolved and the parties return to the table only for the union to threaten to engage in another short-term strike.

According to current case law under the NLRA, work slowdowns, partial strikes, and intermittent strikes are not permitted; therefore, employees who engage in them are not protected and may potentially be disciplined or discharged. The reason for this long-standing policy is clear—while employees should be free to withhold their labor as economic leverage, they should not be able to do so without any risk or sacrifice. For that reason, “quasi-strikes” (strikes that are “intentionally planned and coordinated so as to effectively reap the benefit of a continuous strike action without assuming the economic risks associated with a continuous forthright strike, i.e., loss of wages and possible replacement”) have not been entitled to protection under the NLRA.[1] Therefore, unions have been hesitant to call more than one or two of these short strikes during any single labor dispute/negotiation because of the potential that the third or fourth short strike would be considered intermittent and unprotected under the NLRA.

In October 2016, the General Counsel (“GC”) of the NLRB issued an Operations-Management Memorandum to Regional Directors and others acknowledging that unions and employees “are more frequently engaging in short-term strikes” and seeking to “clarify and modify the law regarding intermittent and partial strikes” to address concerns that employees face “potential discipline for activities that should be considered protected under Section 7 of the [NLRA].”

The GC Memorandum instructs the NLRB’s Regions to take action to again put their thumb on the scales in favor of unions. Specifically, the GC Memorandum instructs Regions litigating this issue to utilize an Intermittent Strike Brief Insert that advocates for a loosening of the standard to sanction any intermittent or short-term strikes that:

  1. “involve a complete cessation of work” (as opposed to a slowdown or partial work stoppage);
  2. “are not designed to impose permanent conditions of work [i.e., weekend only strikes, refusal to work overtime, etc.], but rather are designed to exert economic pressure; and
  3. the employer is made aware of the employees’ purpose in striking.”

If this position is accepted by the NLRB and the courts, unions would be free to conduct as many short, intermittent strikes as they desired so long as they called for a complete walkout and they informed the employer what end they were seeking to achieve by striking. Such a ruling would result in the increased use of such tactics.

Takeaways (Short-Term Strikes)

At this point, no decision has been reported based on the GC’s argument. Nevertheless, health care employers should be aware of the NLRB’s position and watch for further developments. Unions representing health care workers are aware of the GC’s published instructions to the Regional Directors and likely will be looking to test this theory. Employers should prepare accordingly. While contingency planning is definitely a must, employers may also be able to take advantage of certain bargaining strategies designed to mitigate the impact of these union tactics. Employers should consult with experienced labor counsel to ensure that they are prepared.

A version of this article originally appeared in the Take 5 newsletter Five Key Issues Impacting Health Care Employers.”

[1] WestPac Electric, 321 NLRB 1322, 1360 (1996).

On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.

The suit was filed by the Chamber of Commerce of the United States, Coalition for a Democratic Workplace, National Association of Manufacturers, the National Retail Federation and the Society for Human Resources Management.  It seeks an order vacating the Final Rule, declaring the Final Rule to be contrary to the Act and in excess of the Board’s statutory jurisdiction and authority and to violate the First and Fifth Amendments.

The claims raised in the suit are essentially the same as those which were raised by in an action filed in the same court in 2012, in response to the NLRB’s December 2011 adoption of a very similar set of changes to its representation election procedures.  That action also challenged the Board’s action based on what it found to be the Board’s lack of a quorum at the time it adopted those rule changes in 2011. Because the Court found that the Board lacked a quorum at that time, it found it unnecessary to address the substantive arguments about the changes in the election rules that are the essence of the new lawsuit.

While the Complaint does not indicate that the plaintiffs are seeking an order enjoining the Board from implementing the new election procedures under the Final Rule while the case is litigated, the plaintiffs are likely to request such an order as the Final Rule’s effective date of April 15th nears.  In the earlier challenge to the Board’s 2011 rulemaking, the Court granted an injunction in April 2012 enjoining the Board from putting the new rules and procedures into effect, while it considered the merits of the challenge.

While Republican members of Congress have with increasing frequency indicated their desire to reign in the Board in a variety of areas where they have seen it as exceeding its mandate or moving in directions that they do not agree with, it is almost certain that President Obama would veto such legislation and it is not likely that the sufficient support would be present to override a veto. Thus as the New York Times observed  earlier this week, those who oppose administrative actions such as this are turning increasingly to the courts in hopes of relief.

We will continue to monitor and report on developments in this closely watched case.

On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.” As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

To access the full blog post, please click here.