Whether your workforce is unionized or non-unionized, all employers should be aware that the National Labor Relations Board ("NLRB") recently issued a significant decision, involving an individual physician and her employer, highlighting that the protections set forth in Section 8(a)(1) of the National Labor Relations Act ("NLRA") extend to professional, non-union employees who have engaged in concerted activities for the purpose of collective bargaining or the aid or protection of co-workers. In Family Healthcare, Inc., 354 NLRB No. 29 (2009), the NLRB determined that a health care employer violated Section 8(a)(1) by discharging a physician who challenged management and the new contractual terms management had offered to her and her fellow non-union physicians. This decision serves as an important reminder to all employers that NLRA protections apply both to "professional" employees and non-union workforces.

The Decision

In Family Healthcare, Inc., Dr. Kristine McCallum, a licensed physician, brought a retaliatory discharge claim against her employer, Family Healthcare, Inc. ("FHI"), which operated medical clinics. Her claim arose out of the new contractual terms FHI had proposed to Dr. McCallum and several other physicians employed in one of the corporation's clinics. The physicians opposed the new terms, which stipulated that hours worked by doctors at FHI clinics only would count toward compensation, but not hours worked at a local hospital. Those terms would have forced the doctors to either accept less compensation or work longer hours.

Dr. McCallum assumed a leading role in a series of meetings with FHI management representatives in which the physicians' concerns were shared. She warned management that she and other doctors would withdraw their hospital privileges given the new contractual policy, and later unilaterally submitted her withdrawal of privileges to the hospital. Shortly after Dr. McCallum's withdrawal, she met with a management representative to inform him of this decision and that six other doctors would also be withdrawing their privileges. A few weeks later, FHI terminated Dr. McCallum's employment contract without providing a reason for the termination.

The Administrative Law Judge ("ALJ") determined that FHI clearly would not have terminated Dr. McCallum's employment had she not contested the new contract and engaged in concerted activity with her fellow physicians to withdraw their hospital privileges. As Dr. McCallum had challenged management on the terms and conditions of employment for herself as well as her colleagues, it was determined this activity appropriately fell under Section 7 of the NLRA, which provides employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) of the NLRA prohibits employers from interfering with the Act's protective rights. Moreover, given that FHI had not indicated a reason for Dr. McCallum's discharge, the ALJ held that the omission was indicative of unlawful motivation on the part of the employer.

The NLRB affirmed the ALJ's Order, requiring the employer to fully reinstate Dr. McCallum to her former job, and to compensate her for any loss of earnings or other benefits she suffered, with interest, as a result of her retaliatory discharge.

Implications of the Decision

The Family Healthcare, Inc. decision highlights for employers the broad application of protected employee concerted activity under the NLRA. As Dr. McCallum's successful retaliatory discharge claim demonstrates, such protection extends to individual employees challenging an employer's decision-making in a wide variety of employment contexts, in both unionized and non-unionized workforces and with professionals and non-professionals. Employers should additionally be forewarned that when no reason is provided for an employee's discharge, the NLRB may find an adverse inference of unlawful motivation against the employer.

If you have any questions regarding the NLRB's Family Healthcare, Inc. decision or how it may affect your company, please contact a member of Blank Rome LLP's Employment, Benefits and Labor Practice Group.

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