Probationary Employee Was Properly Released Despite His Protected Union Activity But Board Member’s Comments Constituted Interference

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: May 04, 2023

By March 2020 the COVID-19 pandemic began to overwhelm hospitals nationwide. One hospital within the Alameda Health System (AHS), Highland Hospital, quickly experienced a shortage of personal protective equipment (PPE). A supervisor at Highland Hospital began to worry that supplies of PPE would be exhausted and directed nurses to wear cloth gowns when tending to non-COVID-19 patients instead of the fluid-resistant gowns normally worn.

Many of the nurses, who are represented by the Service Employees International Union, Local 1021 (SEIU) felt uncomfortable about this change. Saber Alaoui was a probationary nurse in March 2020.  During one of his shifts, Alaoui cut holes in a garbage bag and wore it as a makeshift fluid-resistant gown over his cloth gown.

At some point, an SEIU employee representative approached Alaoui and asked if he would share a picture of himself wearing the modified garbage bag. Alaoui agreed because SEIU was advocating about PPE issues, and seeking to improve access to isolation gowns. SEIU representatives put a version of Alaoui’s picture on Facebook, Instagram, and Twitter.

The post gained traction online and an article appeared in a local newspaper.  Part of a Board of Trustees meeting focused on AHS’s response to the pandemic. The Board discussed media reports of the nurse who wore a garbage bag as PPE.  A Board member asked the AHS CEO if staff were being denied necessary PPE, and the CEO responded that they were not. The Board member then asked, “For the purpose of political theater, have you required staff to wear garbage bags?” The CEO responded, “No,” and said that he happened to be visiting Highland Hospital when the nurse reported wearing a garbage bag. The CEO characterized the incident as an “unfortunate episode” and said that isolation gowns were available later in the day. The Board member responded, “That kind of political theater is not acceptable [in] a time of crisis and we need to keep our heads level and . . . our eyes on the . . . real problem.”

Shortly thereafter, Alaoui’s supervisors began discussing whether to release Alaoui from probation for performance reasons.   Alaoui had failed to administer medication as required by the patient’s treatment plan and had improperly pulled medications for more than one patient at the same time.  When counseled about these mistakes, Alaoui was recalcitrant and argumentative. AHS released Alaoui from his probationary employment.

SEIU filed an unfair practice charge (UPC) with the Public Employee Relations Board (PERB) against AHS, alleging that both Alaoui’s release and the Board member’s statement were improper interference with protected union activity under the Meyers-Milias Brown Act (MMBA) the state law that governs local public agency labor relations.

To establish a prima facie interference case, a charging party must show that an employer’s conduct tends to or does result in some harm to protected union and/or employee rights.  A charging party need not prove an employer acted because of an unlawful motive.  If the union establishes a prima facie case, the burden shifts to the employer.  The degree of harm triggers the weight of the employer’s burden.  If the harm is “inherently destructive” of protected rights, the employer must show that the interference resulted from circumstances beyond its control and that no alternative course of action was available.  For conduct that is not inherently destructive, the employer must show that it narrowly tailored its conduct based on an important operational necessity.

PERB found that Alaoui’s release from probation was for legitimate business reasons, namely, poor performance, and was not inherently destructive. PERB found that the photo of Alaoui wearing the garbage bag gown was protected activity because it drew attention to employee safety concerns.  Releasing Alaoui from probation shortly afterward tended to harm protected rights. But, PERB held that the harm caused by releasing Alaoui from probation shortly after the protected activity was outweighed by AHS’s right to release an employee from probation for serious work performance issues.  PERB dismissed this part of the charge.

PERB next examined the claim of interference based on the Board member’s statement that “political theater is not acceptable.”

In an interference case involving employer speech, PERB looks at the circumstances to determine if an employee or union representative had an objective reason to feel that the employer’s communication coerces, restrains, or otherwise interferes with protected rights. Generally, an employer has a safe harbor from an interference violation if it expresses its views, arguments, or opinions on employment matters unless its expression contains a threat of reprisal or force or a promise of benefit.  This safe harbor for employer speech does not apply, however, “to … urging employees to participate or refrain from participation in protected conduct, statements that disparage the collective bargaining process itself, implied threats, brinkmanship, or deliberate exaggerations.”

PERB first decided that the actions the Board member described as “political theater,” in context, were protected activities because the statement occurred amidst union and employee actions around safety and PPE shortages.  But, PERB further held that an employee listening to the statements could reasonably infer a threat because a reasonable employee would understand “not acceptable” to mean “prohibited.”   PERB concluded that the Board member’s comments that “that kind of political theater is not acceptable” constituted interference in violation of the MMBA.

SEIU v. Alameda Health System, PERB Dec. No. 2856-M 3/23/23.

Note: This case illustrates how careful management must be with any communications that relate in any way to protected activity. On the other hand, PERB does respect an employer’s ability to release low-performing employees even if they have engaged in protected activity, so long as that release is based on operational necessity.

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