The National Labor Relations Board (NLRB) has provided clear signals that the unique, patient-centric environments of general hospital and medical centers—and even surgical services and perianesthesia departments—will not justify any departure from its sweeping decisions striking policies, procedures, and codes of conduct under Section 8(a)(1) of the National Labor Relations Act (NLRA). An employer violates Section 8(a)(1) of the NLRA if it maintains work rules that tend to chill employees’ exercise of their Section 7 right to engage in protected, concerted activity. Even if a rule does not explicitly restrict protected activities, it will violate Section 8(a)(1) if an employee would reasonably construe the rule to prohibit Section 7 activity.
Relying on this provision, on April 13, 2016, in William Beaumont Hospital (363 NLRB No. 162), the NLRB found William Beaumont Hospital’s Code of Conduct for Surgical Services and Perianesthesia unlawful under Section 8(a)(1) to the extent it prohibited:
- conduct that “impedes harmonious interactions and relationships”;
- “[v]erbal comments or physical gestures directed at others that exceed the bounds of fair criticism”;
- “[n]egative or disparaging comments about the moral character or professional capabilities of an employee or physician made to employees, physicians, patients, or visitors”; and
- “behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork.”
On May 5, 2016, in Valley Health System LLC(363 NLRB No. 178), among other findings, the NLRB found that Valley Health System LLC violated Section 8(a)(1) by maintaining rules prohibiting employees from:
- “engaging in conduct that brings discredit on the System or Facility or is offensive to fellow employees”;
- “speaking negatively about a coworker or the hospital”; and
- “disclosing business-related and employee information.”
In Valley Health System LLC, the NLRB found that employees would reasonably construe the challenged rules to prohibit Section 7 activity because of their “ambiguity” and “overbreadth.”For example, the NLRB found that the term “offensive” was not included in a list of “serious forms of objectively clear misconduct that would help employees understand its contours.” The NLRB also critiqued the rules for not providing enough context for an employee to determine what types of “offensive” comments or behaviors the rule prohibits—or how the rule would or would not be applied in the context of Section 7 activity.
Anticipating and detailing each type of prohibited misconduct is a near-impossible task for healthcare facilities, which is the reason many employers have attempted instead to describe categories of misconduct. However, as demonstrated through William Beaumont Hospital and Valley Health System LLC, the NLRB’s recent decisions seem to require healthcare employers to do just that—explicitly detail every type of prohibited conduct—to avoid Section 8(a)(1) violations. In light of these recent rulings, careful scrutiny of policies, procedures, and codes of conduct is warranted to identify and evaluate any language similar to the language used in the stricken policies.