03/05/2025: Union Organizers Did Not Lose Protection in Heated Exchange
An application of Lion Elastomers and Atlantic Steel.
Women and Infants Hospital, JD-19-25, 01-CA-312111 (ALJ Decision)
This case involves allegations that Women and Infants Hospital violated Section 8(a)(1) of the National Labor Relations Act by disciplining two employees who were on union leave for leading "walk-ins" (unannounced group visits to present grievances to management).
Background
Josue Diaz and Kelli Price were hospital employees who took union leave to work as organizers for New England Health Care Employees Union, District 1199-SEIU. While on leave, both employees led separate walk-ins to address employee concerns.
Diaz led a walk-in on July 19, 2022, accompanying an interpreter to patient experience director Michelle Rosa Martins' office to address the employee's locker access issues. The interaction became heated, with conflicting accounts about who raised their voice and made threatening gestures. Respondent subsequently issued Diaz a written warning.
Price led a walk-in on February 9, 2023, with 10-12 Environmental Services (EVS) employees to director Peter Cote's office to address concerns about manager Renata Coombs' alleged mistreatment of employees. When Cote refused to meet with the group, Price and employees attempted to speak with Coombs. The employer later issued Price a 30-day no-trespass order, effectively preventing her from performing her union duties on premises.
Legal Analysis
The ALJ rejected the employer's argument that Diaz and Price were not hospital employees during their union leave, finding that both remained statutory employees under established Board law. The ALJ also rejected applying a Wright Line analysis since the employer indisputably acted against the employees for engaging in protected activity.
Applying the Atlantic Steel four-factor test, the ALJ determined that neither employee lost the Act's protection through their conduct during the walk-ins. For both employees, the place of discussion (private office areas away from patients) and subject matter (terms and conditions of employment) favored continued protection. The nature of the outbursts was deemed neutral, and while there was no employer unfair labor practice that provoked their conduct (also neutral), the overall balance favored finding their activity protected.
The ALJ also found violations in the employer's communications about the no-trespass order, finding that statements by HR partner Tim Clifford and hospital president Shannon Sullivan informing employees that Price received the order because of protected activities were unlawfully coercive.
Conclusion and Remedy
The ALJ found the hospital violated Section 8(a)(1) by:
Issuing a written warning to Diaz for leading a walk-in while on union leave
Issuing a no-trespass order to Price for leading a walk-in while on union leave
Threatening to suspend employees for engaging in protected activities
Informing employees that the no-trespass order was issued because of protected activities
The ALJ ordered make-whole remedies including backpay with interest, compensating for adverse tax consequences, removing references to the unlawful discipline from personnel files, and posting appropriate notices.
Significant Cases Cited
BASF Wyandotte Corp., 278 NLRB 173 (1986): Employer violated Section 8(a)(3) by disciplining an employee for conduct while acting as a union representative.
Atlantic Steel, 245 NLRB 814 (1979): Established four-factor test for determining whether an employee's conduct during protected activity loses the Act's protection.
Guardian Industries Corp., 319 NLRB 542 (1995): When an employee is disciplined for conduct that is part of protected activities, the question is whether the conduct is so egregious as to lose protection.
Kysor Industrial Corp., 309 NLRB 237 (1992): Protected concerted activity includes employees approaching management as a group to address grievances about supervisor treatment.
Lion Elastomers LLC, 372 NLRB No. 83 (2023): Where an employer indisputably acts against an employee for engaging in protected activity, Wright Line analysis is not appropriate.
AMIT Inc., 02-RM-357713 (Regional Election Decision)
The Regional Director dismissed a petition seeking to represent a unit of workers at AMIT because it was determined that the unit only contains one worker in it:
It is contrary to Board policy to certify a representative for bargaining purposes in a unit consisting of less than two employees. Roman Catholic Orphan Asylum of San Francisco, d/b/a Mount St. Joseph's Home for Girls, 229 NLRB 251 (1977); Sonoma-Marin Publishing Company, 172 NLRB 625 (1968); and Griffin Wheel Company, 80 NLRB 1471 (1948); cf. discussion in Louis Rosenberg, Inc., 122 NLRB 1450, 1453 (1959); see also Foreign Car Center, Inc., 129 NLRB 319 (1960); and Teamsters Local No.115 (Vila-Barr Company), 157 NLRB 588 (1966). The Board has held that since it is not empowered to require bargaining or to certify a bargaining representative in a unit comprising no more than one employee, it does not direct elections in such units either under Section 9(c) or under Section 8(b)(7)(c). Further, the Board will not direct bargaining in such a unit, and it is not an unfair labor practice if an employer refuses to bargain with a representative on behalf of a one-person unit. Foreign Car Center, 129 NLRB 319 (1961).