Unworkable Employer Work Rules: The Board Once Again Makes Perfection the Enemy of the Good

Seyfarth synopsis: The Board majority holds firm to its standard for evaluating employer work rules despite Member Miscimarra’s vigorous dissent advocating for a new, clearer standard that takes into account an employer’s legitimate business justifications.

 

Last Wednesday, a split Board panel (Hirozawa, McFerran) held in William Beaumont Hospital and Jeri Antilla, 363 NLRB No. 162,  that several work rules promulgated by a Michigan hospital violated the National Labor Relations Act.  The Board’s analysis of the hospital’s work rules arose out of a dispute regarding whether the hospital acted lawfully in firing two nurses for bullying behavior following an investigation into the death of a newborn at the hospital.  The Board unanimously upheld the Administrative Law Judge’s finding that the terminations were lawful, but Member Miscimarra, in a scathing partial dissent, disagreed with the Board panel’s finding that certain work rules were unlawful. He called for the Board to adopt a new standard that would allow the Board to consider the degree of adverse impact a given rule might have on protected activity and the legitimate justifications an employer may have for maintaining such a rule.

 

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