Worker's Bid for Witnesses Was Concerted, Not Just a Personal Defense, NLRB Decides

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June 13 — A Nevada hospital worker who asked co-workers to support his defense against an accusation he threatened a cafeteria cashier was engaged in concerted activity protected by federal labor law, the National Labor Relations Board held June 12 .  

An administrative law judge had concluded Michael Dela Paz sought witnesses for the “purely personal” purpose of confirming his own good character and therefore never engaged in concerted activity. Nonetheless, the ALJ concluded Dignity Health, which operates St. Rose Dominican Hospitals, illegally fired the employee by discharging him under an overbroad instruction about not speaking to co-workers.

NLRB Members Philip A. Miscimarra, Harry I. Johnson, and Nancy J. Schiffer took a different view of the case. Issuing a “rule” to Dela Paz alone was not an unfair labor practice, they said, but firing him for sharing complaints about the cashier with employees and managers violated Section 8(a)(1) of the National Labor Relations Act.

Housekeeper Accused of Threat

Dignity Health suspended Dela Paz in June 2012 after cashier Habiba Araru reported he had threatened to “take care of” her.

The board said it was unclear whether Araru provoked the housekeeper with a critical comment about Filipinos, but it was well established the two employees “did not get along.”

Dignity placed Dela Paz on administrative leave without pay pending an investigation of Araru's accusation, and the hospital instructed him not to contact any employees during his absence.

Dela Paz disregarded the contact ban. He obtained employee statements attesting to his character and within a week he got 17 employee signatures on a petition that cited Araru's sullenness or disrespect for employees.

The hospital, which saw the statements and petition, returned Dela Paz to work and treated his seven-day administrative leave as a suspension, but warned that it would not tolerate any attempt to retaliate against Araru.

Dela Paz found that his petition had stimulated interest among other workers who were unhappy with Araru. Within a few days, he submitted the document with 28 signatures to a Dignity supervisor. Asserting in a termination notice that Dela Paz had violated the hospital's instructions by mounting a retaliatory campaign to get Araru fired, Dignity discharged Dela Paz instead.

An NLRB regional director issued a complaint alleging that Dignity fired Dela Paz for engaging in protected concerted activity. The complaint also alleged the hospital violated Section 8(a)(1) of the NLRA by maintaining an overbroad prohibition on employees communicating with co-workers.

One-Time Instruction Not ‘Rule.'

The ALJ found that by instructing Dela Paz not to communicate with other workers during his administrative leave, the employer established an overbroad rule against concerted activity, but the board disagreed.

Citing Flamingo Las Vegas Operating Co., 360 N.L.R.B. No. 41, 198 LRRM 1469 (2014), the board said “[i]nstructions directed solely at one employee that ‘were never repeated to any other employee as a general requirement' are not work rules.”

NLRB Members Miscimarra, Johnson, and Schiffer said issuing a “rule” to Michael Dela Paz about speaking to co-workers wasn't an unfair labor practice, but firing him for sharing complaints about a co-worker with employees and managers violated Section 8(a)(1) of the NLRA.

The board members said they could not find that Dela Cruz's firing was unlawful on the theory adopted by the ALJ.

Action Was Concerted, Not Just Personal

However, the NLRB found, Dela Cruz was illegally fired because he engaged in concerted activity.

The NLRB held in Holling Press, 343 N.L.R.B. 301, 175 LRRM 1449 (2004), that an employee was not engaged in Section 7 activity when she tried to get a co-worker to testify at a state agency in support of her sexual harassment claim.

However, Miscimarra, Johnson, and Schiffer said the case was distinguishable from Dela Paz's case. In Holling Press, the board members said, there was no evidence any co-worker supported the complaint about, or shared a perception of, sexual harassment in the workplace.

“Here, by contrast,” they said, many employees had real or perceived problems with Araru's attitude in the workplace affecting their working conditions.” Dela Paz's conduct “was unquestionably concerted,” the board members found, and his discharge violated the NLRA.

Text of the opinion is available at