NLRB finds policy against certain "verbal comments or physical gestures" may restrict concerted activity.
The National Labor Relations Board (NLRB) has ordered a non-unionized hospital to rescind Code of Conduct provisions prohibiting “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism” and “Behavior . . . that is counter to promoting teamwork,” finding those prohibitions to be unfair labor practices. William Beaumont Hospital and Jeri Antilla, NLRB Case No. 07-CA-093885, January 30, 2014.
Since at least 2009, William Beaumont Hospital in Royal Oak, Michigan, has maintained a Code of Conduct for its Surgical Services and Perianesthesia that lists examples of prohibited “improper conduct or inappropriate behavior” that would lead to “remedial or corrective action.” In addition to “Willful and intentional threats, intimidation, harassment, humiliation . . . [and] profane and abusive language,” that list originally included a prohibition on “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism.” It also prohibited “Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork.”
In November 2012, two employees of the hospital – Jeri Antilla, a Registered nurse, and DeAnna Brandt, a certified surgical technician, were fired for exhibiting “intimidating and bullying behavior” after an investigation elicited statements from several staff nurses at the hospital that the two were sarcastic and condescending towards the newer nurses.
Antilla and Brandt ultimately filed Unfair Labor Practices charges against the hospital. The discipline or discharge of an employee violates Section 8(a)(1) of the National Labor Relations Act (NLRA) if the discipline or discharge was based upon protected concerted activity.
At the trial on the original charges brought by Antilla and Brandt, the NLRB’s General Counsel verbally amended the complaint to allege that the hospital’s Code of Conduct was overly broad and could discourage Section 7 activities under the NLRA (including engaging in concerted activities for mutual protection or aid). This amendment was especially interesting, because neither Antilla nor Brandt had been disciplined for specific violation of the Code of Conduct.
The Administrative Law Judge (ALJ) determined, after analyzing the Code of Conduct language, that while much of the Code addressed specific business concerns, two of the work rules – those prohibiting “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism” and “Behavior . . . that is counter to promoting teamwork” – were overbroad and ambiguous, and violated Section 8(a)(1) of the NLRA because they could “reasonably be interpreted as prohibiting lawful discussions or complaints that are protected by Section 7 of the Act.” The ALJ also found the hospital to have violated Section 8 by issuing a directive to an employee not to discuss with her coworkers an investigation into a sentinel hospital event involving a patient.
While the Administrative Law Judge found that Antilla and Brandt engaged in discussions and activities that could be viewed as “protected” under the NLRA, the ALJ also found that the two women “would have been terminated absent their protected activity” since an investigation found that they also engaged in activities viewed by others as bullying, mocking, and intimidating behavior, which is not protected under the NLRA. The ALJ recommended dismissal of the charges related to both Antilla and Brandt.
The ALJ’s decision sends a mixed message to employers. While the NLRB has been paying increased attention to policy and handbook provisions related to personal interaction among employees, that attention has not consistently led to the conclusion that disciplinary action for bullying or intimidating behavior is precluded by the NLRA. One way to avoid the rock-and-a-hard-place situation is to review handbooks and other employee policies to assure that existing language is not likely to prohibit protected conversations or other “concerted activity” among employees regarding working conditions.