United States: Union Adherent's Antics Not Protected By Act, NLRB Rules

Last Updated: May 30 2017
Article by Mark Theodore

The NLRB recently issued a rare decision completely dismissing all allegations against an employer; rarer still because it was unanimous. In Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017) the NLRB was confronted with a situation where an employee-union adherent engaged in behavior ultimately found to be inappropriate and unprotected.

The employer, a hospital treatment center for patients with severe emotional and mental problems, recognized a nurses' union as representative of registered nurses at the facility ("Union"). The mental health technicians working at employer's facility were represented by Teamsters. There was an attempt by the Union to raid the Teamsters unit and cause the technicians to change representation; this attempt was led by a registered nurse. These kinds of efforts can cause a great deal of friction in a workplace because the employer has legal obligations to both unions.

Registered Nurse Engages In Strident Actions

During a bargaining session between the Union and the employer, the registered nurse brought several Teamsters-represented technicians to the meeting as "witnesses." The employer objected to the presence of the technicians. When the technicians remained, the employer left the meeting. The Union and the employer met the next day for bargaining and no technicians were present.

Within a couple of days after the bargaining incident, the employer was conducting a tour of its hospital for managers and staff from a sister facility. During the tour, the group visited the unit where the registered nurse worked. The registered nurse immediately started screaming demanding to know "who the visitors were and why they were there." An adolescent patient was in the vicinity of the exchange. When the employer representative leading the tour did not respond, the registered nurse started asking the visitors why the she was barred from visiting the sister hospital. Apparently, registered nurse and a Union official had made an attempt to visit the sister hospital and were denied access to the facility.

The registered nurse kept asking the visitors why she wasn't allowed to visit their hospital. As the tour was winding down in the parking lot of the hospital, the registered nurse approached the group and pointed at the leader of the tour saying, "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 decided to terminate the registered nurse for her unprofessional conduct.

The Union filed charges alleging that the employer's cancellation of the bargaining session violated Section 8(a)(5) of the Act as a breach of its good faith obligation to bargain. The Union also claimed the registered nurse's termination was motivated by protected activity in violation of Sections 8(a)(3) and (1) of the Act.

Cancellation Of Bargaining Session Not A Violation Under The Circumstances

The Administrative Law Judge dismissed the bargaining cancellation allegation. The Judge noted that the "cancellation of bargaining sessions is an indicia of a failure to bargain in good faith, although ordinarily much more than a single isolated cancellation of a bargaining meeting is required before a violation is found." The ALJ considered that the circumstances present in the case, – the invitation of members of a different union who were the subject of a raiding attempt,– was not the most conducive to good faith bargaining:

Although, as shown above, parties are generally permitted to select their own bargaining team, that does not necessarily include the selection of 'observers' who are not members of the bargaining team and have nothing to add to the bargaining. Extending bargaining to such observers–by either side, over the objection to the other–would raise the potential for mischief and serious interference with good-faith bargaining.

The ALJ noted that it is one thing for a union to engage in organizing another union's employees but "it is quite another to take that fight to the bargaining table involving a separate unit." The Board affirmed this finding on appeal

Discharge Of Registered Nurse Was Not For Protected Activities

The General Counsel alleged that the registered nurse's termination was motivated by her protected activity, mainly her behavior during the bargaining session. The ALJ found that the General Counsel had not satisfied his burden of establishing that the termination was motivated by protected activity, noting that there was no linkage other than timing between the bargaining session and the tour. The Judge noted that although the employer's attorney objected to the presence of outsiders, there was no reaction at all related to the registered nurse. The ALJ found the "real motivating factor for the discharge was an independent set of circumstances completely divorced from any union or other protected activity –[registered nurse's] unprovoked misconduct that interfered with a legitimate tour group."

The ALJ also considered whether the conduct of the registered nurse was protected requiring an analysis of whether it became unprotected. The ALJ concluded that no protected activity occurred:

[the incidents] did not involve protected concerted activity by [registered nurse] or anyone else. [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.

The ALJ also seemed swayed by the fact the registered nurse "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." In other words, an employee cannot immediately cloak conduct in the protection of the Act by making claims related to union activity (here, the attempt to visit a different hospital) that do not relate to an ongoing dispute. The conduct must be related to the employee's own terms or conditions of employment. Yelling at a tour group because of a perceived slight at a different hospital does not fit into that category.


In the age of corporate campaigns, where the aim of conduct is often simply to cause irritation in the hopes of pressuring the employer for a larger goal, Brooke Glen Behavior Hospital offers good insight into how to respond to these actions. Bringing outsiders of any kind to a bargaining session can be disruptive and arguably is evidence of bad faith. In some of the more contentious bargaining situations politicians, clergy, and other public figures are invited as "witnesses" despite the fact the sole purpose of having such individuals attend is to pressure the employer. Here, the employer did not overreact. Although the employer did not continue the bargaining session it was faced with a real dilemma: permitting the technicians on this one occasion might open the door to the Union bringing these employees,–who were represented by a different union,– to more sessions. The employer made its point and then continued bargaining the very next day.

The registered nurse's behavior towards the tour group is a trickier issue. As we have noted, actual protected activity can take very strident forms and not lose protection of the Act, even in cases where the language used is vulgar. Had the registered nurse used profanity towards a manager while expressing a legitimate workplace grievance and no outside visitors, customers or clients were present there is llittle doubt this conduct would be protected. Also, the fact the registered nurse here acted alone does not always mean it is not "protected concerted activity" because in the right circumstances a single employee's actions can be protected. What is significant in this case is that the registered nurse aimed her activities at a tour group, visitors who were not involved in any workplace dispute, an object that had no other purpose than to vex the employer. This might very well be a different outcome if, for example, the registered nurse targeted a tour of people who were set to take bargaining unit jobs.

Union Adherent's Antics Not Protected By Act, NLRB Rules

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions