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NLRB: Hospital unlawfully mandated keeping mum about investigation into union-related conversation

By Lisa Milam-Perez, J.D.

A hospital unlawfully restricted an employee from talking about an ongoing investigation into her conversation with a coworker about an impending union election and her alleged threats and use of profanity during that discussion, a three-member NLRB panel held. The employer further violated the NLRA by threatening the employee with unspecified reprisals if she failed to comply with the directive, and by disciplining the employee for engaging in the protected conversation in the first place (NC-DSH, LLP dba Desert Springs Hospital Medical Center, May 10, 2016).

The employee actively supported the SEIU’s efforts to organize the hospital’s CNAs, therapists, and other staff. When she got wind that employees in one area of the hospital were disinclined to vote for the union in the pending representation election, she called a coworker at that location on her personal cell phone, and launched into this tirade: “[W]hat the f*ck is this I’m hearing that everybody is saying—I got a call that . . . everyone on Tower 5 wants everyone to get together and wait a year to see what the hospital do [sic], and then unionize again. . . . I’m so sick of hearing this motherf*cking sh*t.” The employee was off duty at the time but, unbeknownst to her, her coworker was on duty.

The employee was brought into HR. The HR director told her that it was launching an investigation into whether she had threatened her coworkers, and that she was suspended pending its outcome. (The employee acknowledged making the call, but denied making the threats.) The HR director told her to refrain from sharing what had transpired at their meeting, including her suspension; if she did talk, “it will be trouble” for her, she was told. A few weeks later, the employee received a written warning, again directing her not to discuss the disciplinary meeting with others, and again warning that “it could be trouble” if she did.

An NLRB law judge correctly found that the HR director’s instructions not to discuss the investigation, or the suspension, violated Section 8(a)(1). But the ALJ dismissed the allegation that the “there could be trouble” admonishment amounted to an additional violation. Reversing, the Board found the threats of unspecified reprisals amounted to an additional violation of the Act, having “[c]onveyed in the clearest terms that she could receive further discipline if she continued to have conversations about employee discipline, the Respondent’s disciplinary investigations, or her union activity.” Of note: the HR director’s statements “were part of the res gestae of the already-found violations” including unlawful interference and unlawful discipline (a separate 8(a)(3) violation), and would “clearly dissuade” the employee from talking about her prior protected activity (discussing the union election with coworkers).

As for the underlying discussion, the Board also noted that the employee’s use of profanity did not strip her of the Act’s protections; the employee on the other end of the cell phone was the only person to hear the statements, the profanity was not accompanied by any threat of harm, and there was no evidence that the coworker was in a patient care area at the time of their conversation. Also, the coworker testified that it was quite common for the pair to swear at each other in conversation; there was nothing out of the norm here.