In a rare win for the employer, the National Labor Relations Board (the “Board”) unanimously affirmed an Administrative Law Judge’s (“ALJ”) decision that the termination of a union bargaining-committee representative for a profanity-laden rant did not violate the National Labor Relations Act. Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017).

The employer, a hospital treatment center for patients with severe emotional and mental problems, was engaged in collective bargaining with a nurses’ union. During a bargaining session, the employee, a registered nurse, brought several mental health technicians (who were represented by a different union) to “observe.”  The employer objected to the technicians’ presence and left the meeting.

Several days later, the employer was conducting a tour of its hospital for managers and staff from an affiliated facility. When the tour group approached the registered nurse’s work area, she began screaming and demanding to know “who the visitors were and why they were there.”  Receiving no response, the registered nurse “again asked what the visitors were doing at the hospital, asked one particular visitor how many orientations he needed, and pointed out, sarcastically, ‘here’s the hallway, here’s the window.’”  At the conclusion of the tour, while the tour group was in the parking lot, the registered nurse again approached the group and, pointing at her supervisor, stated, “this one don’t do sh*t, she ain’t shi*t … I’m going to get you the f*ck out of here.”  The employer terminated the registered nurse for her unprofessional conduct.

The General Counsel challenged the termination arguing that 1) the registered nurse’s protected activity during the bargaining session was the motivating factor for the termination and 2) the registered nurse’s conduct during the tour constituted protected activity for which she was unlawfully terminated. The ALJ rejected both arguments, and the Board agreed.

First, the ALJ found no link, other than timing, between the bargaining session and the employee’s termination.  Instead, the “real motivating factor for the discharge was an independent set of circumstances completely divorced from any union or other protected activity-[the registered nurse’s] unprovoked misconduct that interfered with a legitimate tour group.”

Next, the ALJ rejected the argument that the nurse’s confrontations with the tour group constituted protected activity. As the ALJ explained:

[The registered nurse] was at work during two of the confrontations; and the third took place after work in [the employer’s] parking lot. The tour and its aftermath were not an invitation for her to interfere with the tour so as to turn those acts of interference into protected activity.  At best, [the registered nurse’s] testimony shows that in her mind, she perceived the tour as somehow related to her union activity.  But protected activity must be based on objective fact, not subjective perceptions of the party or witness making the claim.

The Board long has recognized that employees are permitted some leeway for impulsive behavior while engaged in protected activity. This case, however, demonstrates that an employer does not have tolerate misconduct unconnected to any workplace dispute or grievance.