Those involved in the world of healthcare cannot escape the ongoing debate regarding staffing levels at healthcare facilities. Main Coast Memorial Hospital recently became an unwitting focal point for this discussion. A number of internal communications between the nurses’ union and the Hospital over staffing resulted in a series of editorials in the local newspaper. This in turn motivated a non-union employee to write a letter to the editor supporting the position of the union in criticizing the management of the Hospital. In doing so, however, the employee violated the Hospital’s media policy, which restricted how and when an employee may contact media services, and she was discharged. She then filed an unfair labor practice charge over her discharge. In a ruling on November 2, after an evidentiary hearing, an ALJ found the employee’s actions to be protected and concerted, and therefore found the discharge unlawful. The matter is currently on appeal before the NLRB.
The case turned on the Board’s new standard for workplace rules as expressed in the Boeing decision, as well as the fundamental concept of what constitutes protected concerted activity. In applying Boeing, the ALJ found that the rule was neutral on its face, but that it had been applied in a discriminatory fashion. The ALJ appeared to rely, in large part, upon the fact that the Hospital had never enforced this policy in the past. Notably, however, there was also no evidence of a prior breach of this rule. The concerted nature of the employee’s actions also appears questionable, as the letter to the editor was clearly stated in terms of the author’s individualized beliefs, and there was no indication that she was acting on behalf of any other employee. She had simply stated she agreed with the presentation of concerns by other employees – in particular, the union’s position on matters of staffing.
The bottom line is that employers should always be aware of the implications of the National Labor Relations Act regarding workplace complaints, whether they are internal or external, such as this case, to an outside media source. Disciplining employees for expressing their opinions can often be found to be protected concerted activity under the NLRA and therefore result in a public relations nightmare due to the adverse press associated with the filing of a charge with the NLRB. Employers should review their rules regarding media contact to ensure (1) that they comply with the NLRA and do not prohibit protected concerted activity, and (2) ensure consistent enforcement of the rule.