A recent decision issued by the National Labor Relations Board demonstrates that sometimes an employee can go too far, and that termination is a proper remedy for improper conduct. BHC Northwest Psychiatric Hospital, LLC; cases nos. 04-CA-164465, 04-CA-174166, May 15, 2017.
BHC operates an in-patient facility that provides mental health services. The charging party was part of a bargaining unit of staff and charge nurses. Mental health technicians, who are in a different bargaining unit, are represented by the Teamsters. During negotiations between BHC and the nurses union, a bargaining committee member brought several mental health technicians to observe the negotiations with the aim of having the technicians join the nurses’ unit. BHC’s representatives objected, and ultimately walked out the meeting. However, they resumed negotiations the next day with the technicians present.
The following day, one of the nurses’ lead negotiators (in fact, the same one who brought the technicians to the negotiations) worsened the situation when she began to yell and scream at a group touring the facility. She demanded to know who they were and why they were there. Apparently this outburst was not enough, as she harassed the group and insulted her supervisor in the parking lot as they were leaving. A few days later, the employee was terminated, which led to unfair labor practices charges against BHC.
The administrative law judge, who was affirmed by the Board, made quick work of the claims. Noting that a party may not bring anyone it wants to a negotiation session, the ALJ found no violation when BHC walked out of the negotiations, and also noted that any perceived technical violation was remedied by BHC participating the following day while the technicians were present. Turning to the organizer’s termination, the judge, to put it simply, didn’t believe a word she said. Attacking her credibility, the ALJ ruled that the union did not meet its burden of showing that the organizer’s protected activity was a motivating factor in the termination and, even if it had, BHC demonstrated that it would have terminated the organizer in the absence of protected activity based on her improper conduct.