By Wayne D. Garris Jr., J.D.
On the same day that the union won the election, the employer began an investigation of the nurse, a 23-year employee with no history of discipline, which ultimately led to her termination.
The D.C. Circuit denied a hospital employer’s petition for review of an NLRB decision finding that the employer committed four unfair labor practices after its registered nurses voted to unionize. Shortly after the election, the employer terminated a pro-union nurse and reported her to the Ohio Board of Nursing. The temporal proximity between the nurse’s union advocacy and her termination, in addition to the fact that she was disciplined more harshly than nurses who committed similar infractions, indicated that her union activity was the reason for her termination, said the court, which also agreed with the Board that the employer committed additional unfair labor practices after the election when it banned a union representative from the hospital’s premises, refused to bargain with the union, and threatened to retaliate against nurses who filled out a union-issued complaint form (DHSC, LLC dba Affinity Medical Center v. NLRB, December 20, 2019, Garland, M.).
Election and termination. In August 2012, the employer’s registered nurses voted to unionize. On the same day as the election, the employer began an investigation of a pro-union nurse, alleging that she failed to conduct a head-to-toe exam or round on a patient but recorded that she did so in the patient’s chart. The next week, the employer gave the nurse a written warning for an alleged failure to correct a problem with a medication storage system. In September, the employer terminated the nurse and reported her to the Ohio Board of Nursing for the exam and recording incidents.
Unfair labor practices. The union filed an unfair labor practice charge alleging that the employer issued the warning, terminated the nurse, and reported her in retaliation for her support of the union. The Board found that the employer’s actions were retaliatory and that the employer committed three additional unfair labor practices when it unlawfully banned a union organizer from the hospital’s grounds, when a hospital supervisor said, in reference to union-issued complaint forms, “I feel like slapping these on your forehead so you can walk around and look how stupid you look with them,” and when the employer refused to bargain with the union.
Retaliatory discharge. The Board properly concluded that the employer committed an unfair labor practice by disciplining, firing, and reporting the nurse, said the court. Applying the Wright Line standard to determine whether employee discipline constitutes an unfair labor practice, the court noted that the nurse’s name and photograph were displayed on a pro-union flyer and two of the managers involved in disciplining her were aware of her support for the union. Further, the investigation and written warning occurred just days after the election. In addition, the Board determined that the employer had no basis for finding that the nurse did not perform the head-to-toe exam and failed to interview a key witness during its investigation.
Harsher discipline. The Board also found that another nurse had failed to perform a head-to-toe exam and only received a written warning. The employee received a written warning about the medication-storage issue, but, observed the Board, she didn’t violate a hospital policy and other nurses were not disciplined for similar conduct. The employer’s only defense for its conduct was that it had a valid basis for firing the nurse. Like the Board, the court was not persuaded by this defense. Accordingly, it held that the Board’s finding the employer committed an unfair labor practice was supported by substantial evidence.
Union rep ban. In addition, a union organizer wrote a letter in defense of the nurse, which provided the nurse’s account of the exam and recording incident. The letter included the patient’s room number and other details but did not provide the patient’s name. The hospital’s privacy officer concluded that the union organizer violated the Health Insurance Portability and Accountability Act and banned her from the hospital’s premises. But even if the organizer violated HIPAA, said the Board, the severity of her punishment was discriminatory.
Agreeing, the court found the privacy officer’s testimony left a question of whether the organizer was banned because of her union activity. The privacy officer testified that she would have normally given a union representative a verbal warning in a similar situation, but that the organizer’s letter “raised a different problem” because it “was sent to the individuals it was sent to.” It was not clear, said the court, whether the employer felt the letter was worse because it went outside of the hospital or because it went to union officials.
Supervisor’s threat. The employer conceded that a hospital supervisor threatened and retaliated against nurses who filled out the complaint forms but argued that use of the forms did not constitute protected activity because it was outside of the hospital’s usual reporting system. Rejecting this argument, the court found that the purpose of the complaint forms was to encourage nurses to “speak up together” about unsafe hospital practices. The forms constituted concerted activity, so it was an unfair labor practice for the employer to retaliate based on the use of the form.
Refusal to bargain. The only defense that the employer raised on the refusal-to-bargain charge was that the Board’s Acting General Counsel lacked authority to prosecute the complaint under the NLRA and the Federal Vacancies Reform Act. Because the employer failed to raise this defense before the Board, the court concluded that it lacked jurisdiction to consider it.
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