A theme we have followed here with interest is protected concerted activity, and what kinds of conduct might render otherwise protected activity “unprotected.” We noted, for instance, that the Board recently held that an employee’s use of derogatory gender-based comments may not not render a protected outburst “unprotected,” even if the EEOC and the myriad State discrimination enforcement agencies might very well disagree. The Board generally gives a great deal of latitude for “impulsive conduct” related to workplace disputes over wages and terms and conditions of employment.
The Board recently issued another decision addressing this issue in Gaylord Hospital, 359 NLRB No. 143 (June 26, 2013). Gaylord involved a non-union hospital which, like many health care institutions, was having an issue with staffing levels. This issue particularly irritated the 30 Respiratory Therapists (RTs), many of whom (including the Charging Party) initially raised their concerns in a letter to management. The employer responded by holding meetings. The issues at work concerned lunch breaks, floor coverage and seniority for purposes of vacation. The seniority issue, ironically, triggered the issue in the case.
A State Department of Health audit identified a number of issues in the processes at the facility, which the employer endeavored to fix. One issue concerned when RTs might miss giving a patient medications, and how to document the reasons for why a patient was given medication. The RTs objected to the new policy fearing that documentation would mean that they would be responsible for writing each other up.
On the way to discuss this issue with her manager, Charging Party, learned that she had been denied vacation based on a seniority policy that required the employer to credit seniority to another RT who had retired, yet returned to work on an as needed basis. Charging Party confronted her manager at his office. While standing in the doorway, Charing Party stated the new policy would be trouble and that the manager was “trouble.” The manager indicated that he was not the one who implemented the policy, but the situation escalated with both parties raising their voices. The confrontation ultimately broke off.
The very next day the Charging Party misread an order to give a test to a patient, and ran a test on the wrong day. She ultimately tried to cover it up by entering into the record system that the order was given “verbally” when such verbal orders were typically only appropriate in emergency situations.
The same day as the test cover-up, the employer decided to issue Charging Party a warning for her confrontation with her manager. Charging Party objected to it and the parties agreed to discuss it later.
The employer ultimately decided that the Charging Party had falsified medical records and terminated her for this reason. Charging Party filed charges challenging the discipline and discharge.
Written Warning Violates Act
The Administrative Law Judge applied the four factors set forth by the Board in Atlantic Steel Co., 245 NLRB 814, 816 (1979) to determine whether Charging Party’s conduct was unprotected, and concluded that three of the four factors established that the activity remained protected. The considerations given by the ALJ are instructive in her discussion of each factor:
Factor 1: the location of the conduct. Charging Party’s conduct occurred during work and in a suite of offices. Charging Party sought out her manager, “and thus its location was not determined by some act on Respondent’s part,” which would have rendered such activity less protected. There was no evidence of disruption of the workplace other than the fact a couple of other employees may have heard the outburst. Ultimately, the ALJ ruled, “[b]ecause the confrontation did not take place in a patient care area, and there is no evidence of a negative impact on [manager's] supervisory authority or a disruption of” the operation, she ruled the factor “weighs slightly in favor of a finding that [Charging Party's] conduct remain[ing] protected.”
Factor 2. The ALJ ruled the “nature” of the discussion strongly favors protection. The RT was complaining about the “missed medication” reporting, an issue that had been raised by a number of other RTs during a department meeting, and had been acknowledged as an issue by the employer. Thus, there was clear evidence that the reason for the discussion was about something that was of clear concern not just to one employee, but to many.
Factor 3. The ALJ found the nature of the outburst also strongly militated in favor of a finding of protection. Here the RT merely called the manager “trouble.” In this part of the opinion, the ALJ set forth a compendium of cases on the issue of the nature of the outburst which are a useful instructional guide:
In fact, [RT's behavior] is positively genteel compared to the other language used in the course of conduct that ultimately remained protected. See Plaza Auto Center, 355 NLRB 494-97, remanded in relevant part 664 F.3d 286 (employee’s activity remained protected, despite reference to owner as a ‘f*cking motherf*cker,’ ‘f*ucking crook,’ and ‘a%%hole,’ as ‘a single verbal outburst of insulting profanity does not exceed the bounds of the Act’s protection’); Tampa Tribune, 351 NLRB 1324, 1324-1325 (2007), enf. denied 560 F.3d 181 (4th Cir. 2009) (employee called vice president a ‘stupid f*cking moron’); see also Alcoa, Inc., 352 NLRB 1222, 1225-1226 (2008) (employee referred to supervisor as an ‘egotistical f*cker’); Burle Industries, 3oo NLRB 498 (1990), enfd. 932 F.2d 958 (3d Cir. 1991) (employee called supervisor a ‘f*cking a%%hole’). In addition, there is no evidence that [Charging Party's] outburst involved threats or physically intimidating conduct. . .
In other words, the outburst was fairly mild (by Board standards) and did not rise to such a level that would have rendered employee unfit for further service.
Factor 4. The ALJ noted this factor was not provoked by the employer’s unfair labor practices.
In that three of the factors militated in favor of continued protection, the ALJ ruled that the written discipline issued was a violation of the Act.
Termination Did Not Violate Act
The ALJ ruled that the discharge of Charging Party was not unlawful, mainly because although there was some evidence (including the written warning) that the discharge might have been motivated by protected activity, the employer established that it would have terminated the RT anyway. Indeed, the ALJ found that the employer had conducted a very thorough investigation during which it gave Charging Party more than one opportunity to explain her actions, reviewed all relevant documentation and was very deliberate in nature.
The Board affirmed all the findings with no opinion of its own. The ALJ’s decision is lengthy but worth a read as it describes in great detail what makes a good investigation of misconduct (remember to provide due process to the accused and to take the time to review all relevant avenues of inquiry), what kinds of outbursts have been considered protected despite the liberal use of profanity, and other staples necessary to conduct good human resources management.