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Even when a union and an employer are in full agreement that an employee should be discharged for disruptive behavior, neither is necessarily insulated from liability under the National Labor Relations Act (NLRA). A disgruntled employee can allege a violation of NLRA rights by both entities. However, when the National Labor Relations Board (NLRB) fails to adequately justify its finding of a violation, a federal appeals court recently ruled, it should not automatically be entitled to explain itself further.
In 2011, Good Samaritan Hospital in Brockton, Mass., hired Camille Legley to be a part-time boiler operator. As testified to by hospital representatives at trial, many supervisors found Legley to be difficult to deal with during the interview process. However, faced with a hard-to-fill position, it decided to hire him.
During orientation, Legley attended a meeting with 1199 Service Employees International Union United Healthcare Workers East, the union representing certain Good Samaritan employees. As testified to by union representatives, Legley became belligerent during this meeting and protested the alleged assertion that he was required to become a union member in order to be employed in the position. One of the presenters at the meeting thereafter reported to the union that she felt intimidated by Legley and that she was extremely upset.
Thereafter, the union and the hospital met to discuss the issue with Legley. The union expressed its concern about Legley's conduct toward its representative. Taking this information together with the hospital's initial assessment of Legley as "difficult" during the hiring process, the hospital decided to discharge Legley for "inappropriate disrespectful behavior." Legley filed an unfair labor practice charge with the NLRB, asserting that his firing was due to his protest of alleged mandatory union membership.
[SHRM members-only HR Q&A: What is an unfair labor practice by management?]
The administrative law judge found that both the hospital and the union had violated the NLRA. On review, the NLRB affirmed the conclusion of unlawful conduct. Both the union and the hospital appealed.
The appeals court reversed the NLRB's decision. In doing so, it criticized the decision-making process of the board. Among other things, it noted that the board relied on legal principles not considered by the lower judge but failed to consider the factual record in light of that different legal analysis. On other occasions, the appeals court faulted the board for failing to properly interpret the hearing evidence. It noted, citing earlier court decisions, that the board "may not distort the fair import of the record by ignoring whole segments of uncontroverted evidence. Moreover, when the board purports to be engaged in simple fact-finding … it is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands."
The court concluded that the inferences to be drawn from the record evidence supported the defense that the reasons for Legley's discharge were his instances of disruptive behavior and that his protected, concerted activity—protected by Section 7 of the NLRA—was unrelated to the firing. Noting the board's failure to justify its departure from these inferences, the appeals court, in a split decision, decided not to remand the matter to the NLRB for reconsideration of its ruling. It held, "Because we believe that [the board] had all of the evidence and arguments it needed to articulate a contrary position and, if it actually intended to take such a position, neglected to do so because of its failure to consider the record as a whole, we decline the dissent's invitation to remand to the NLRB for reconsideration."
Good Samaritan Medical Center v. NLRB, 1st Cir., Nos. 15-1347, 15-1412 (May 31, 2017).
Professional Pointer: Activity covered by Section 7 of the NLRA is protected in both union and nonunion workplaces. Care must be taken when addressing adverse employment actions that touch upon protected concerted activity. The motivation for such actions when Section 7 activity is present can be expected to be closely scrutinized by the NLRB.
Scott M. Wich is an attorney with Clifton Budd & DeMaria LLP in New York City.
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