In William Beaumont Hospital, 363 N.L.R.B. No. 162, 4/13/16, the National Labor Relations Board (NLRB) recently examined William Beaumont Hospital’s “Code of Conduct for Surgical Services and Perianesthesia.” The Code read, in relevant part:
It is the intention of Beaumont Hospitals to foster effective working relationships among all hospital employees and physicians in order to provide and maintain high quality and safe patient care. Such relationships must be based upon mutual respect to avoid disruption of patient care or to hospital operations.
It is the expectation of hospital management that employees and physicians promote and maintain a professional environment in which all individuals are treated with dignity and respect.
Conduct on the part of a Beaumont employee or physician that is inappropriate or detrimental to patient care of [sic] Hospital operation or that impedes harmonious interactions and relationships will not be tolerated. Transgressors shall be subject to appropriate remedial or corrective action.
Improper conduct or inappropriate behavior or defiance in the following example [sic], which includes but not limited [sic] to the following:
[1.] Willful and intentional threats, intimidation, harassment, humiliation, or coercion of employees, physicians, patients, or visitors.
[2.] Profane and abusive language directed at employees, physicians, patients or visitors.
[3.] Behavior that is rude, condescending or otherwise socially unacceptable. Intentional misrepresentation of information.
[4.] Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism.
….
[5.] Negative or disparaging comments about the moral character or professional capabilities of an employee or physician made to employees, physicians, patients, or visitors.
[6.] Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork.
A split NLRB ruled that the Hospital violated Federal law by maintaining rules that (a) prohibit conduct that impedes “harmonious interactions and relationships,” and (b) prohibit “negative or disparaging comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors.” This finding was based on application of “reasonably construe” standard set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646-647 (2004), where the NLRB concluded that a rule that does not explicitly restrict Section 7 activity is nevertheless unlawful if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to Section 7 activity; or (3) the rule has been applied to restrict the exercise of such activity.
The decision is noteworthy because of the partial dissent by Board Member Philip Miscimarra, who wrote that “it defies common sense to find that a hospital violates Federal law merely by stating that physicians and nurses must promote ‘harmonious interactions and relationships.’” Miscimarra explained:
Under Lutheran Heritage, reasonable work requirements have become like Lord Voldemort in Harry Potter: they are ever-present but must not be identified by name. Nearly all employees in every workplace aspire to have “harmonious” dealings with their coworkers. Nobody can be surprised that a hospital, of all workplaces, would place a high value on “harmonious interactions and relationships.” There is no evidence that the requirement of “harmonious” relationships actually discouraged or interfered with NLRA-protected activity in this case. Yet, in the world created by Lutheran Heritage, it is unlawful to state what virtually every employee desires and what virtually everyone understands the employer reasonably expects.
Miscimarra urged overruling and replacing the “reasonably construe” standard of Lutheran Heritage in favor of a more evenhanded approach to evaluating employment policies, work rules, and handbook provisions. Rather than determining, in some theoretical vacuum devoid of real world complexities, whether a work rule ever could be construed to unlawfully interfere with employee rights, Miscimarra suggested that the NLRB has a duty to strike a proper balance between (a) the potential adverse impact of the rule on NLRA-protected activity, and (b) the legitimate justifications an employer may have for maintaining the rule. Under such a balancing test, a facially neutral policy, work rule, or handbook provision would be unlawful if the business justifications are outweighed by the adverse impact on Section 7 activity.
According to Miscimarra, one possible outcome of a more layered analysis might be a finding that an employer could maintain a certain work rule notwithstanding some possible impact on Section 7 activity, but enforcement of that rule as applied to employees who engage in NLRA-protected conduct would be prohibited. Indeed, such a finding may even solve the Lord Voldemort problem. Employers could set expectation by adopting reasonable work rules, and the Section 7 rights of employees still would remain protected.
The majority disagreed with a new standard that would shift focus away from NLRA-protected rights and towards employer interests.