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Nurse’s communication critical of hospital was protected by NLRA


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pkryder

By Patricia Porter Kryder

A nurse wrote an e-mail concerning a hospital’s nursing fellow program. The program director became enraged, suspended the nurse and then later discharged her. The hospital argued that the nurse had no NLRA protection for a communication that criticized the quality of a program that was not her responsibility.

A nurses’ association filed unfair labor practice charges challenging the hospital’s discharge of the nurse and its disciplinary warning to another nurse who voiced her support of the discharged nurse. A third nurse filed a separate charge alleging that 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 the NLRA by interfering with their statutory rights to engage in concerted activity for the mutual aid or protection of employees.


The NLRB affirmed the administrative law judge’s decision, and the hospital filed a petition for review in the D.C Circuit. The Court disagreed with the hospital, and held that the nurse had NLRA protection for a communication that criticized the quality of a program that was not her responsibility. The e-mail described the 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.

The Court reasoned that the e-mails addressed issues that directly impacted the nurses, agreeing with the board’s findings that the action was protected under the NLRA. The Court ruled that it was not even a close question that supervisory animus over the e-mail was a motivating factor in the nurse’s discharge. The Court agreed that the board had properly found the suspension and termination of the nurses’ employment to be an unfair labor practice.


Furthermore, the Court agreed with the Board that before the hospital fired the nurse, it violated the NLRA by warning the nurse not to discuss her suspension. The Court enforced the board’s position that employees have a statutory right to discuss discipline or disciplinary investigations with co-workers.

The Court also agreed that the hospital had illegally disciplined the nurse who supported the fired nurse, the Court viewed a complaint that the disciplined nurse had pushed a supervisor, as a trumped-up charge. The Court found that the nurse was not aggressive and therefore did not lose her statutory protection.

Finally, the Court said that the NRLB was entitled to enforcement of its decision concerning a third employee who was unlawfully denied a promotion due to her comment to another employee about declining after-hours nursing work. The hospital did not dispute the concerted nature of the activity but argued that the nurse was advocating a partial strike that was unprotected by the NLRA. Since the discussed work was voluntary, the board concluded that discouragement of such volunteerism could not have amounted to advocating a strike. In addition, since this comment cost the nurse a promotion, the hospital violated her rights under the NLRA.

 

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