NLRB Unanimously Ruled Employee Conduct Lost Protection from the Act

The outcome of this case surprised me because the NLRB has previously found less egregious activity to be protected by the National Labor Relations Act. A union represented nurses at a hospital. The hospital and nurses’ union were negotiating a collective bargaining agreement. Negotiations became somewhat ugly. This caused the employer to cancel a bargaining session and the union employees to agitate against the employer.

When one nurse saw the employer conducting a tour of its hospital for managers and staff from a sister facility she started screaming and demanding to know “who the visitors were and why were they there.” When the employer did not respond, she started asking the visitors directly why were they allowed to visit her hospital when she was barred from visiting their facility (she and a union official previously attempted to visit the sister facility and were denied access). Still receiving no response, the 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…’”

When the tour wound down in the parking lot, the nurse approached the group, pointed at the leader of the tour and said “this one don’t do sh&t. She ain’t sh$t! She walks around here with an air…I am going to get you the f*ck out of here.” The employer terminated the nurse for unprofessional conduct.

As the NLRB Regional Offices are prone to do, it argued that her termination was motivated by her protected activity. The case went to trial where the Administrative Law Judge ruled that the motivating factor for the discharge was an independent set of circumstances completely divorced from any union or other protected activity – her unprovoked misconduct that interfered with a legitimate tour group. Here’s the kicker, on appeal, the NLRB upheld the ALJ’s decision.

I fully expected the NLRB to rule that the nurse’s behavior towards the tour group was protected concerted activity. I am glad I was wrong. Had the nurse used profanity towards a manager while expressing a legitimate workplace grievance and no outside visitors, customers, or clients were present, her conduct would be protected. Instead, the nurse aimed her antics at a tour group, visitors who were not involved in any workplace dispute, with the sole objective to vex the employer. According to the ALJ:

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 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.

Pro tip to employers: while it certainly feels that employees are able to do whatever they want against an employer these days, don’t just assume a union employee’s activities are protected even during bargaining season. Close scrutiny should be paid to the facts before determining whether the activity was protected, whether it was protected but lost the protection, or whether it was never protected. Once that is determined, you should take appropriate action.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at