D.C. Circuit Backs NLRB on Hospital Discipline Cases

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By Lawrence E. Dubé

July 24 — The National Labor Relations Board properly held that a Virginia hospital violated federal labor law when it discharged, disciplined or failed to promote three nurses because they engaged in protected concerted activity, the U.S. Court of Appeals for the District of Columbia Circuit held July 24.

Writing for the court, Judge Patricia A. Millett said the board had substantial evidence that INOVA Health System discharged nurse Donna Miller because she sent management an e-mail expressing concerns that she and four other nurses were adversely affected by the hospital's administration of a nursing fellows program.

The court also approved the board's decision that a second nurse was given a final written warning for protesting INOVA's treatment of Miller and a third nurse was denied a promotion, both in violation of the National Labor Relations Act, because she told a co-worker that volunteering for after-hours surgical assignments would encourage the hospital to require more such work in the future.

Discipline of Nurses Led to NLRB Litigation

According to the decision, a nurses' association filed unfair labor practice charges challenging INOVA's discharge of Miller and its disciplinary warning to Judy Giordano, who voiced her support for Miller.

Nurse Cathy Gamble filed a separate charge alleging she was denied a promotion due to her NLRA-protected activity.

An NLRB administrative law judge found that the hospital's action against each nurse violated Section 8(a)(1) of the NLRA by interfering with their statutory rights to engage in concerted activity for the mutual aid or protection of employees.

The board affirmed the ALJ's decision (360 N.L.R.B. No. 135, 199 LRRM 2017 (2014)), and the hospital filed a petition for review in the D.C. Circuit.

Illegal Firing of Nurse Who Voiced Group Concerns

Miller's e-mail concerning INOVA's nursing fellows program enraged the program director and led the hospital to suspend and then discharge her, the court said.

INOVA argued Miller had no NLRA protection for a communication that merely criticized the quality of a program that was not her responsibility, but the court disagreed.

Millett said the e-mail described nurses' collective complaints that they were not given an adequate break between each program round and that they had difficulty integrating the fellows into the daily work of the nursing staff.

Miller's e-mail addressed issues that “directly impacted” the nurses, and the board properly found her action was protected by the NLRA, the court said. “It is not even a close question” that supervisory animus over the e-mail was a motivating factor in Miller's discharge, and the board properly found the suspension and termination of Miller's employment was an unfair labor practice, Millett said.

The court also enforced the board's decision that before INOVA fired Miller, it violated the NLRA by warning the nurse not to discuss her suspension.

The board has held that employees have a statutory right to discuss discipline or disciplinary investigations with co-workers, Millett said. She found that the board had evidence to support its ruling that the hospital directed, rather than “recommended,” that the nurse keep her suspension confidential.

Supporter Drew Unlawful Written Warning

The D.C. Circuit also enforced the board's finding that INOVA illegally disciplined Giordano.

The hospital alleged that Giordano pushed a human resources official when she confronted the official with several other nurses and complained INOVA was “making a big mistake” in its action against Miller.

The hospital's own initial report on the incident said Giordano gave the official a “touch” that was not aggressive, and the court said the board properly found the nurse never lost statutory protection for her protected concerted complaint.

Comment on Voluntary Work Cost Nurse a Promotion

Finally, the court said the NLRB was entitled to enforcement of its decision that Gamble was unlawfully denied a promotion due to her comment to another employee about declining after-hours nursing work. Millett said the hospital did not dispute the concerted nature of Gamble's activity but argued the nurse was advocating a partial strike that was unprotected by the NLRA.

The work Gamble discussed with her co-worker was voluntary, and the board “thus reasonably concluded that Gamble's discouragement of such volunteerism could not have amounted to advocating a strike,” Millett said.

Finding the board had substantial evidence that Gamble's comment cost her a promotion, the court agreed the hospital violated the nurse's rights under the NLRA.

Judges Judith W. Rogers and David B. Sentelle joined in the opinion.

Littler Mendelson PC represented INOVA Health System. NLRB attorneys represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/INOVA_HEALTH_SYSTEM_PETITIONER_v_NATIONAL_LABOR_RELATIONS_BOARD_R.