08/28/2025: Nurse's Social Media Post About Boss Was Protected Activity
Election petition rejected because substantial changes in the unit are forthcoming.
Brynn Marr Hospital, Inc., JD-72-25, 10-CA-328533 (ALJ Decision)
This NLRB case involves a registered nurse, Misty Marie Blanchard, who was placed on administrative leave and later discharged by Brynn Marr Hospital after she posted on social media about having a "vendetta" against a hospital leader. The case examines whether these actions violated Section 8(a)(1) of the National Labor Relations Act by interfering with Blanchard's protected concerted activity.
Background Facts
Blanchard worked as a PRN (as-needed) nurse at Brynn Marr Hospital in Jacksonville, North Carolina. In April-May 2023, she complained about workplace harassment by co-worker Randy Mello, who allegedly called Blanchard and her husband (also a hospital employee) "crackheads." After consulting with multiple co-workers and supervisors about how to handle the situation, Blanchard submitted a formal complaint to hospital management on May 21, 2023. The hospital responded promptly by removing Mello from the schedule.
On June 4, 2023, Director of Nursing Sheila Maraan told Blanchard to "follow your chain of command," which Blanchard perceived as retaliatory. Blanchard later sent an email to Maraan on June 12 expressing her concerns about this interaction. Maraan apologized in response.
On June 20, 2023, Blanchard posted on her personal Facebook page (visible only to selected co-workers) that she had a "vendetta against a current person in a leadership position" and was "coming for her." Although Maraan wasn't named, Blanchard admitted the post referred to her. The next day, June 21, the hospital placed Blanchard on administrative leave and subsequently terminated her employment on June 27, citing violation of the hospital's social media policy.
Legal Issues and Analysis
The ALJ addressed two key issues:
Whether the hospital's social media policy violated Section 8(a)(1)
The ALJ found the policy did not violate the Act. Using the standard from Stericycle, Inc., the ALJ determined the General Counsel failed to prove the policy had "a reasonable tendency to chill employees from exercising their Section 7 rights." While the policy prohibited threatening, defaming, or harassing posts, it contained multiple "savings clauses" explicitly stating it was not designed to interfere with rights under the NLRA.
Whether placing Blanchard on leave and terminating her violated Section 8(a)(1)
The ALJ found these actions did violate the Act. The ALJ determined that Blanchard's social media post and text exchanges constituted protected concerted activity because:
They concerned workplace issues (harassment, bullying, retaliation)
She had discussed these concerns with multiple co-workers
Her complaints represented concerns of a group, not just herself
The ALJ then analyzed whether Blanchard's "vendetta" comment caused her to forfeit protection using factors from Pier Sixty, LLC. Although the post was deliberate and not provoked by the employer, other factors weighed in favor of continued protection:
The post was on a private social media page
It concerned legitimate workplace issues
It did not contain profanity or explicit threats
Blanchard explained she meant building a case for Maraan's removal, not physical harm
The ALJ found that the hospital's reliance on unsubstantiated rumors about more explicit threats (never verified) could not strip protection from Blanchard's activity. The ALJ concluded that the balance of factors favored continued protection.
Remedy
The ALJ ordered the hospital to:
Offer Blanchard reinstatement to her PRN nurse position
Make her whole for lost earnings, calculated based on her PRN status
Remove references to the discharge from her personnel file
Post notices about the violation at the facility
Significant Cases Cited
Stericycle, Inc., 372 NLRB No. 113 (2023): Established that General Counsel must prove a challenged rule has a reasonable tendency to chill employees from exercising Section 7 rights.
Pier Sixty, LLC, 362 NLRB 505 (2015): Set forth factors for determining whether an employee's conduct during protected activity forfeits the Act's protection.
Lion Elastomers LLC, 372 NLRB No. 83 (2023): Reaffirmed that Wright Line burden-shifting is inappropriate where employer based discipline on employee's conduct during protected activity.
Burnup & Sims, Inc., 379 U.S. 21 (1964): Established that an employer violates the Act by firing employees engaged in protected activity based on honest but mistaken belief about misconduct.
Meyers Industries, 281 NLRB 882 (1986): Defined concerted activity as engaged in with or on behalf of other employees, including bringing group complaints to management.
Children's Hospital & Research Center at Oakland, 32-RC-367029 (Regional Election Decision)
The NLRB Regional Director dismissed a representation petition filed by Office and Professional Employees International Union (OPEIU) Local 29 seeking confirmation of its status as the majority representative for a unit of approximately 50 laboratory employees at UCSF Benioff Children's Hospital Oakland.
The union had been voluntarily recognized by the employer since 1985 and sought a General Box election to confirm its majority status. However, the Regional Director found the petition untimely because the unit was undergoing significant changes due to an integration between the employer and the University of California, San Francisco (UCSF), scheduled to be largely completed by July 6, 2025.
The integration process involved substantial changes to the unit, including:
New onboarding processes, benefits, and workplace policies
New payroll, timekeeping, and HR systems
Different leadership controlling hiring, firing, discipline, and scheduling
New job titles, classifications, pay ranges, and structures
Some unit employees being offered severance packages
Some employees being reclassified as supervisory or unrepresented positions
Most unit employees transitioning into the UPTE HX unit at UCSF
The Regional Director applied the standard from K-P Hydraulics, which holds that a petition is untimely if the requested unit is "expanding in size and/or changing in its basic character to such an extent that the present complement of employees is not substantial and representative in relation to that projected for the reasonably foreseeable future." The Board generally requires approximately 30% of the eventual employee complement to be employed and 50% of the eventual job classifications to be filled for an election to be appropriate.
The Regional Director found that the size and character of the unit were uncertain and in flux at the time of the hearing. The number of employees who had accepted severance was unknown, and the unit could potentially expand from 50 employees to as many as 3,000 as part of the UPTE unit. Additionally, the terms governing the unit post-integration were unsettled, with new benefits, sick leave, and other working conditions.
The petition was dismissed without addressing the question of the Board's continued jurisdiction over the unit as it transitioned to a public entity (UCSF), noting that related unfair labor practice cases would allow for a fuller investigation of that issue.
Significant Cases Cited
K-P Hydraulics Co. v. United Electrical, 219 NLRB 138 (1975): Established that petitions are untimely when the requested unit is changing in size or character such that the present complement is not substantial and representative of the future unit.
Custom Deliveries, Inc., 315 NLRB 1018 (1994): Clarified that approximately 30% of the eventual employee complement and 50% of eventual job classifications must be filled for an election to be appropriate.
Some Industries, Inc., 204 NLRB 1142 (1973): Found election inappropriate when only 17% of projected employees were hired in less than 50% of job classifications.
Noranda Aluminum, Inc., 186 NLRB 217 (1970): Dismissed petition when only 8 of 365 employees were hired.
General Box Co., 82 NLRB 678 (1949): Established procedure for unions to confirm majority representative status through Board-conducted elections.