Nlra Case Notes

• Citation: Vol. 30 No. 4
• Publication year: 2016
• Author: By Jeff Bosley and Colin Wells

NLRA Case Notes

By Jeff Bosley and Colin Wells

Jeffrey S. Bosley is a partner in the Labor and Employment Department of Davis Wright Tremaine LLP, and represents employers and management in labor and employment law matters. He can be reached by email at jeffbosley@dwt.com. Colin D. Wells is a labor and employment associate at Davis Wright Tremaine LLP, where he represents employers in labor relations and employment law issues. He can be reached by email at colinwells@dwt.com.

Member Miscimarra Proposes New Balancing Test to Replace Lutheran Heritage Village Standard

William Beaumont Hosp., 363 NLRB No. 162 (2016)

In a 2-1 decision, the National Labor Relations Board (Board) held that portions of a hospital's code of conduct violated the National Labor Relations Act (the Act or NLRA) because they were overbroad and could be reasonably construed to infringe on employees' section 7 rights. Members Hirozawa and McFerran wrote for the majority. In his partial dissent, Member Miscimarra proposed that the Board abandon the standard for reviewing employment policies under Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004), which states that a work rule or policy is unlawful if employees would reasonably construe the language to prohibit section 7 activity. Miscimarra proposed a new test that balances employers' justifications for work rules versus employee rights under the Act.

The case arose from the termination of two nurses following an infant's death in the hospital's maternity ward. An Administrative Law Judge (ALJ) found the employees' terminations were lawful, and the Board agreed. The ALJ found, however, that two out of seven provisions of the hospital's code of conduct were unlawfully overbroad under the Lutheran Heritage standard. While the majority agreed with most of the ALJ's findings, it overruled the ALJ and found that two additional provisions were also unlawfully over-broad: a provision that prohibited conduct that "impedes harmonious interactions and relationships;" and a provision that prohibited "negative or disparaging comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors."

In his partial dissent, Miscimarra disagreed that the two provisions found unlawful by the majority violated section 7 rights under the Act. Highlighting the importance of the rules at issue to hospital settings, he stated that they "are supported by substantial justifications unrelated to the [Act]" and "would have a minimal impact" on an employee's exercise of his or her section 7 rights.

Miscimarra advocated for the abandonment of the Lutheran Heritage "reasonably construe" standard. He criticized the standard as simply "entail[ing] a single-minded consideration of NLRA-protected rights" without considering an employer's legitimate justifications for policies. He further criticized the test for limiting the Board's discretion to find common sense rules lawful, or to differentiate between industries and work settings, or consider specific events that might lend weight on the validity of a rule. He also called the standard unpredictable and based on "several false premises that are contrary [the Act]," including "a misguided belief that unless employers correctly anticipate and carve out every possible overlap with [the Act's] coverage, employees are best served by not having employment policies, rules and handbooks" at all.

Miscimarra proposed a balancing test to replace the Lutheran Heritage standard. Under his test, the Board would weigh "(i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule." In so doing, the Board would distinguish between various types of protected activity, and various substantial justifications for a rule, with the understanding that some section 7 rights are "comparatively slight" and some justifications are more peripheral in importance. The Board would also consider...