In its never ending quest to make the workplace virtually unmanageable, the Board has come out with another gem bound to vex human resources professionals. Naturally the decision applies to both non-union and unionized employers, throwing a wrench into anti-harassment and non-retaliation policies everywhere.
The case was Dignity Health d/b/a St. Rose Dominican Hospitals and Michael S. Dela Paz. The facts in the matter were fairly straightforward. Mr. Dela Paz had frequent and varied disputes with another hospital employee who worked as a cashier. Mr. Dela Paz, exercising less than stellar judgment, eventually threatened the cashier by stating that he would “take care of [her].” Surprise, surprise Dignity Health placed him on administrative leave and commenced an investigation.
While on leave, Mr. Dela Paz decided it would be a grand idea to circulate a petition requesting signatures from other employees who had issues with the cashier. Following the investigation, Dignity Health returned him to work. Their HR team was on the ball and warned him that retaliation against the cashier and/or other coworkers was prohibited by hospital policy. Mr. Dela Paz then deliberately picked up his petition drive where it left off, continuing to solicit signatures. You can guess what happened next. When his supervisors learned of his activities, he was discharged for violation of Dignity Health’s zero tolerance anti-retaliation policy. About as clear cut termination that any employer could hope for, right?
Not so fast. The apparently permanently aggrieved Mr. Dela Paz filed an unfair labor charge, and the NLRB decided in his favor. HUH? Specifically, the NLRB found Mr. Dela Paz’s signature campaign was protected concerted activity under the National Labor Relations Act and therefore he could not be terminated for his behavior. The NLRB ordered Mr. Dela Paz be fully reinstated and paid lost back wages. The Board was silent on what it plans to do to protect the threatened employee.
Once again the NLRB has created a “damned if you do damned if you don’t” dilemma for HR. If Dignity Health had failed to respond to the ongoing signature campaign, the cashier could have filed a claim with the EEOC for retaliation and/or harassment against the hospital. Most seasoned HR pros are used to complex fact patterns involving conflicting law or policy, as anyone who has ever navigated the HR Bermuda Triangle of FMLA, ADA and workers’ compensation can attest, but this takes the cake. Human Resource professionals need to be aware of the interplay of these two statutes and consult with experienced labor and employment attorneys when faced with similar fact patterns.