NLRB Rejects Employer’s Code of Conduct

NLRBThe National Labor Relations Board (NLRB) recently rejected several “anti-bullying” provisions in a hospital’s employer handbook after finding they could interfere with workers’ rights to act to improve their working conditions.

A three-member NLRB panel ruled 2-1 that the questioned questioned provisions were so over-broad and imprecise that they could be used to penalize workers who engaged in lawful conflict under the National Labor Relations Act (NLRA), such as expressing a concern about working conditions or questioning the professional capabilities of a physician or nurse.

The case involved the termination of two nurses by William Beaumont Hospital in Royal Oak, Michigan, for allegedly bullying and intimidating new nurses. The nurses, Jeri Antilla and Deanna Brandt, argued their complaints were protected by the NLRA and involved under-staffing and patient safety.

The NLRB majority ruled the following prohibitions in the hospital’s employer handbook were unlawful :

  • Conduct that “impedes harmonious interactions and relationships”
  • Verbal comments or physical gestures directed at others that exceed beyond the bounds of fair criticism.
  • Negative or disparaging comments about the professional capabilities of an employee or physician made to employees, physicians, patients, or visitors.”
  • “Behavior that is. . . counter to promoting teamwork.”

The dissent contended that the NLRB has made employers “afraid of articulating work rules (to the detriment of employees, patient safety, and a wide range of legitimate employer interests).”

The board upheld several challenged provisions in the hospital’s handbook, finding them to be lawful. These include prohibitions against “[w]illful and intentional threats, intimidation, harassment, humiliation, or coercion of employees, physicians, patients or visitors;” “[p]rofane and abusive language directed at employees, physicians, patients or visitors;” “[b]ehavior that is rude, condescending or otherwise socially unacceptable;” “[i]ntentional misrepresentation of information;” and “[b]ehavior that is disruptive to a safe and healing environment.”

Neither Antilla nor Brandt were reinstated. The NLRB upheld the lower court’s finding thatruled they  would have been fired regardless of their protected complaints for  “negative, intimidating and bullying behavior.”

The case is William Beaumont Hospital and Jeri Antilla, Case 07–CA–093885 (April 13, 2016).

NLRB Expands Transparency in Workplace Investigations

The National Labor Relations Board (NLRB) has ruled that employers can no longer automatically withhold witness statements from unionized employees who are investigated for workplace misconduct.

In Piedmont Gardens, 362 NLRB No. 139, the NLRB ruled that employers must undertake a case-by-case balancing of the union’s need for the information against “any legitimate and substantial confidentiality interests established by the employer.” In the past, employers automatically sealed witness statements, ostensibly to protect witnesses from intimidation, harassment and retaliation.  However, there was no blanket exemption for the names of witnesses. The result of the  NLRB ruling is that witness statements will be treated like the names of witnesses.

According to the NLRB:  “There is no basis for concluding that all witness statements, no matter the circumstances, warrant exemption from disclosure… if the requested information is relevant, the party asserting the confidentiality defense has the burden of proving that it has a legitimate and substantial confidentiality interest in the information, and that it outweighs the requesting party’s need for the information.”

While the board’s ruling is limited to unionized workplaces, it could have broader impact as employers adopt uniform policies to address workplace discrimination, harassment, and retaliation.  [Read more…]

Federal Agencies Study Workplace Bullying

While federal and state laws to address workplace bullying remain elusive, the U.S. government is moving forward to address the problem.

The  U.S. Merit Systems Protection Board (MSPB) recently placed “nonsexual harassment” on its research agenda for 2015-2018.  In the past, the MSPB has focused on sexual harassment but it has not previously addressed the problem of general harassment or workplace bullying. The Board states it will study ways to foster effective work environments by eliminating nonsexual harassment.

Meanwhile, the EEOC last month formed a Select Task Force to examine the problem of workplace harassment and look at ways by which it might be prevented. EEOC Commissioner Jenny Yang said 30 percent of the charges received by the EEOC each year include harassment complaints. The task force, which includes 16 members from around the country,  will hold a series of meetings, including public meetings, in the year ahead.

The Occupational Safety Health Administration signed a union agreement in 2011 that provides protection against workplace bullying to its own workforce. Unfortunately, OSHA, which is charged with insuring the safety of America’s private sector workers, has yet to extend these same protections to workers outside OSHA.

According to the MSPB: “Nonsexual harassment is particularly inappropriate when the perpetrator is a supervisor or otherwise exercises official authority over the employee,” states the MSPB.

The MSPB states that federal employees should be aware of the problem of nonsexual harassment and “cognizant of the hazards of nonsexual harassment and strategies to extinguish this behavior before it undermines the quality of their workplace.”

Specifically, the board will study:

  • How do federal employees define nonsexual harassment?
  • How prevalent is it in the federal workplace?
  • Who are the most common perpetrators and victims of nonsexual harassment?
  • What effect does nonsexual harassment have on federal workplace outcomes like retention and turnover, motivation, engagement, job satisfaction, and leader trust?
  • Do federal employees believe that appropriate action is being taken to address nonsexual harassment?
  • What strategies, both effective and ineffective, are used to address it?

The MSPB is an independent, quasi-judicial agency in the Executive branch that hears employee appeals of decisions of the Civil Service Commission, reviews significant actions of the U.S. Office of Program Management, and performs merit system studies.

There is overwhelming evidence that workplace bullying causes targets to suffer  potentially severe mental and physical health impacts.  Employers pay the price for bullying in the form of personnel turnover, low morale and absenteeism, higher health care costs and unnecessary litigation

NLRB excuses worker’s use of F-Bomb

NLRBIf workers are continually provoked and goaded by managers, they may at some point respond emotionally.  Some may cry. Some may swear. Where is the line between an excusable outburst and misconduct that is serious enough to justify termination?

This issue was recently addressed by the National Labor Relations Board (NLRB) in a case involving a car salesperson, Nick Aguirre, who was fired after an outburst directed at his boss, Tony Plaza, the owner of Plaza Car Center of Yuma, Arizona.  In a split decision, the Board found that Plaza had violated the National Labor Relations Act (NLRA) and ordered Plaza to reinstate Aguirre with back pay.  Section 8 of the act protects employees who are acting to improve their working conditions. [Read more…]