Spectrum Health Services, Inc.

372 NLRB No. 21 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Spectrum Health Services, Inc. and National Union of Hospital and Health Care Employees (NUHHCE), AFSCME, AFL–CIO and its Affili- ate District 1199C. Case 04–CA–264558 December 15, 2022 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND RING On February 24, 2022, the General Counsel issued a complaint alleging that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by discharging employee Ashley Mallory on May 1, 2020, because she engaged in protected concerted activities. The Respond- ent filed an answer, admitting in part and denying in part the allegations of the complaint and asserting as an affirm- ative defense that the Board should defer to an arbitrator’s decision upholding Mallory’s discharge pursuant to the standard for deferral adopted in United Parcel Service, Inc., 369 NLRB No. 1 (2019) (UPS).1 On April 1, 2022, the Respondent filed a motion for summary judgment and a brief in support, with exhibits attached, renewing its contention that the Board should defer to the arbitrator’s decision and requesting dismissal of the complaint. The General Counsel and the Charging Party each filed an opposition. On June 7, 2022, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the Respondent’s motion should not be granted. The General Counsel and the Charging Party each filed a re- sponse, arguing that summary judgment is not warranted because material facts remain in dispute and that deferral is inappropriate as a matter of law because the arbitrator’s decision does not merit deferral under the Spielberg/Olin standard. In addition, the General Counsel urges the Board to overrule UPS and return to the deferral standard established in Babcock & Wilcox, supra. The Respondent filed reply briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 Affd. in relevant part sub nom. Atkinson v. NLRB, No. 20-1680, 2021 U.S. App. LEXIS 20264, 2021 WL 2850565 (3d Cir. July 8, 2021), affd. on rehearing 2021 U.S. App. LEXIS 33417, 2021 WL 5204015 (3d Cir. Nov. 9, 2021). UPS overruled Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014), rev. denied sub nom. Beneli v. NLRB, 873 F.3d 1094 (9th Cir. 2017), and reinstated the deferral standards established in Olin Corp., 268 NLRB 573 (1984), and Spielberg Mfg. Co., 112 NLRB 1080 (1955). 2 All further dates are in 2020 unless otherwise indicated. Ruling on Motion for Summary Judgment A. Background The Charging Party represents a unit of employees at the Respondent’s community health facility. Ashley Mal- lory was employed by the Respondent as a Patient Ser- vices Representative (PSR). On May 1, 2020,2 the Re- spondent discharged Mallory for accessing a patient’s medical record on March 27 for reasons unrelated to her job duties, in violation of its HIPAA Confidentiality Pol- icy.3 On May 6, the Charging Party filed a grievance over Mallory’s discharge, which subsequently was submitted to arbitration pursuant to the grievance-arbitration provi- sion of the parties’ collective-bargaining agreement. On August 13, the Charging Party filed an unfair labor prac- tice charge alleging that Spectrum Health Services dis- charged Mallory in retaliation for engaging in protected concerted activity and thereby violated Section 8(a)(1) of the Act. On March 1, 2021, Arbitrator David J. Reilly issued his award denying the grievance and upholding Mallory’s dis- charge as for just cause. He found that on March 27, Mal- lory accessed the appointment history of a patient who had tested positive for COVID-19. Because this access was not related to Mallory’s job duties, it violated the Re- spondent’s HIPAA Confidentiality Policy. The arbitrator further found that Mallory attempted to repeat that unau- thorized access an hour later and would have succeeded if the Respondent had not blocked access to the patient’s file in the interim.4 The arbitrator acknowledged Mallory’s understandable concerns about COVID-19 in March 2020, but he found that discharge was nevertheless war- ranted because of the seriousness of the offense, the im- portance of patient privacy interests, and the willful nature of the violation. The arbitrator was also presented with evidence showing that the Respondent has a zero-toler- ance policy for violations of its HIPAA Confidentiality Policy, which it has consistently enforced. The arbitrator specifically considered and rejected the Union’s claim that Mallory’s discharge was in retaliation for her “union activities.” The arbitrator noted that on Jan- uary 14, Mallory and union representatives raised employ- ees’ concerns regarding work-flow issues to management, and on April 8, Mallory inquired about personal protective 3 HIPAA is the Health Insurance Portability and Accountability Act, a federal law that sets standards for the protection of individually identi- fiable health information by health care providers like the Respondent. 4 The arbitrator’s award indicates that the Respondent presented evi- dence indicating that Mallory disclosed the patient’s positive COVID-19 test to another PSR, and that Mallory denied this. The arbitrator did not resolve this issue in his award. In any event, Mallory was discharged for accessing the patient’s record, not for disclosing the patient’s COVID- 19 test results. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 equipment for employees. But the arbitrator found that “the Employer’s decision to discharge Mallory was not motivated by any animus for her union activity.” “Stated otherwise,” the arbitrator wrote, “I am satisfied that the Employer would have taken the same action based upon its finding as to her March 27, 2020 violation [of] the Con- fidentiality Policy, notwithstanding any union activity in which she had engaged.” After the arbitrator denied the grievance, the General Counsel issued the present complaint, alleging that Mal- lory engaged in protected concerted activities on January 14, March 27, April 14, and April 21 and that the Re- spondent discharged her for engaging in those activities. In its answer to the complaint, the Respondent admits that Mallory engaged in the January 14 and March 27 conduct considered by the arbitrator and that Mallory met with management on April 14 “to address certain matters on behalf of her fellow union members, including the distri- bution of masks that had been dropped off by the union representative.” The Respondent asserts, however, that a second alleged meeting regarding masks did not take place on April 21, denies that Mallory’s conduct on March 27 was protected concerted activity, and denies it violated the Act. B. Analysis “It is a settled principle that for summary judgment to be appropriate the record must show that there is no gen- uine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Conoco Chem- icals Co., 275 NLRB 39, 40 (1985) (citing Stephens Col- lege, 260 NLRB 1049, 1050 (1982)). It is also well settled that summary judgment may be granted based on deferral to arbitration. See, e.g., United Parcel Service of Ohio, 305 NLRB 433 (1991), enfd. mem. 8 F.3d 27 (9th Cir. 1993); Dennison National Co., 296 NLRB 169 (1989); United States Postal Service, 275 NLRB 430 (1985). The Board will defer to an arbitration award if “(1) the arbitration proceedings were fair and regular, (2) the par- ties agreed to be bound, (3) the contractual issue was fac- tually parallel to the unfair labor practice issue, (4) the ar- bitrator was presented generally with the facts relevant to 5 We decline the General Counsel’s request to overrule UPS and re- turn to the deferral standards set forth in Babcock & Wilcox on a motion for summary judgment, where the issue has not been fully litigated. Chairman McFerran did not participate in UPS and expresses no opinion on whether that case was correctly decided, but she applies it here as extant precedent. 6 As an initial matter, we find no merit to the General Counsel’s and the Charging Party’s argument that the Respondent’s denial, in its answer to the complaint, that it committed the alleged unlawful act raises a ques- tion of material fact requiring resolution through a hearing before an ad- ministrative law judge. See United Parcel Service of Ohio, supra (grant- ing summary judgment notwithstanding that the respondent had filed an resolving the unfair labor practice, and (5) the decision was not clearly repugnant to the purposes and policies of the Act.” UPS, 369 NLRB No. 1, slip op. at 9.5 There is no dispute that the arbitration proceedings were fair and regular and that the parties agreed to be bound. It is also evident that the contractual issue of whether Mallory was discharged for just cause is factually parallel to the unfair labor practice issue of whether she was discharged for en- gaging in protected concerted activity. See Altoona Hos- pital, 270 NLRB 1179, 1179 (1984) (finding contractual issue of whether the employer had just cause to discharge an employee for disclosing confidential information con- tained in a patient’s file was factually parallel to the statu- tory issue of whether the employer unlawfully disciplined the employee for engaging in protected activity by disclos- ing the information). In opposing summary judgment, the General Counsel and the Charging Party contend that the arbitrator was not presented with all the relevant facts and that his decision is clearly repugnant to the purposes and policies of the Act.6 We disagree with these contentions and find deferral warranted. First, the arbitrator was presented generally with the facts and theories relevant to resolving the unfair labor practice issue. The arbitrator specifically considered and rejected the argument that Mallory was discharged be- cause of what he termed her “union activities,” including discussions with her coworkers about the positive COVID test on March 27, as well as her prior questions and com- plaints to management regarding work-flow issues and mask distribution. Contrary to the assertions of the Gen- eral Counsel and the Charging Party, under extant prece- dent, the arbitrator did not need to specifically consider each individual instance of Mallory’s alleged “union ac- tivities,” nor did he need to specifically address whether the timing of the discharge in relation to those “union ac- tivities” supports a finding of unlawful motivation.7 See Dennison National Co., supra, 296 NLRB at 170 (finding the applicable legal standard requires only that the arbitra- tor be presented generally with the facts relevant to the unfair labor practice issue). In addition, although the ar- bitrator considered and rejected the claim that Mallory’s answer admitting in part and denying in part allegations of the com- plaint); Dennison National Co., supra (same); United States Postal Ser- vice, supra (same). Florida Steel Corp., 222 NLRB 586, 587 (1976), cited by the opposing parties, is inapposite. The issue presented there was whether the General Counsel’s motion for summary judgment could be granted when the respondent, in its amended answer, denied that it had violated the Act. That case did not involve a deferral issue and has no bearing on whether a respondent’s motion for summary judgment may be granted if the respondent denies that it has violated the Act. 7 It is also immaterial that the Respondent disputes the complaint al- legation that Mallory engaged in protected concerted activity on March 27. SPECTRUM HEALTH SERVICES, INC. 3 discharge was in retaliation for what he termed her “union activities,” while the complaint alleges that Mallory was discharged for protected concerted activities, the differ- ence in terminology is immaterial here since the arbitrator ultimately concluded that Mallory would have been dis- charged for accessing a patient’s file even in the absence of those activities. See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de- nied 455 U.S. 989 (1982), approved in NLRB v. Transpor- tation Management Corp., 462 U.S. 393 (1983). In effect, the arbitrator found that the Respondent met its defense burden under Wright Line. This finding also moots the General Counsel’s criticism of the arbitrator’s decision for not addressing timing. In addition, we find that the arbitrator’s award uphold- ing Mallory’s discharge for accessing a patient’s medical records on March 27 is not clearly repugnant to the Act.8 It merits emphasis that our task here is not to determine whether we would have reached the same result as the ar- bitrator if we were standing in his shoes. Our task is to determine whether the arbitrator’s decision is susceptible to an interpretation consistent with the Act. If so, it is not clearly repugnant to the Act. See United Parcel Service of Ohio, 305 NLRB at 434. On these facts, the arbitrator’s decision here was sus- ceptible to an interpretation consistent with the Act. The arbitrator found that Mallory violated a policy consistently enforced by the employer and concluded that Mallory would have been discharged for this violation even in the absence of any protected or union activities. While the arbitrator’s decision need not be totally consistent with Board precedent to be deemed not “clearly repugnant to the Act,” see Altoona Hospital, supra, 270 NLRB 1179, here, it is perfectly consistent with Board precedent for the arbitrator to have found that Mallory’s violation of the HIPAA Confidentiality Policy was the true reason for her discharge. See id. (upholding an arbitral award finding that an employee was discharged for violating the hospi- tal’s rule prohibiting disclosure of information from con- fidential patient records and rejecting the General Coun- sel’s claim that the award was repugnant to the Act be- cause the disclosure was in furtherance of the employee’s grievance and thus protected activity). To reiterate, in reaching this conclusion, we need not decide whether the Board would have reached the same result on its own. Communication Workers Local 13000 v. NLRB, 99 Fed. Appx. 233, 235 (D.C. Cir. 2004), enfg. 339 NLRB 1084 (2003). It is sufficient that the award is not “palpably wrong.” Altoona Hospital, supra, 270 NLRB at 1180. Accordingly, we shall defer to the resolution of the grievance by the arbitrator, grant the Respondent’s motion for summary judgment, and dismiss the complaint. ORDER The complaint is dismissed. Dated, Washington, D.C. December 15, 2022 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ______________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 8 In advancing this contention, the General Counsel asserts that the arbitrator found that “Mallory was concerned about COVID-19 exposure in the workplace [through] a COVID-19-positive patient, and that she brought her coworker into this knowledge by asking the coworker to ac- cess the patient’s record. He also found that Respondent discharged Mal- lory for this conduct.” According to the award, however, Mallory asked another PSR to attempt to access the patient’s record but “denied sharing with this PSR any information regarding the patient, including the Covid positive test result.” The award makes no finding that Mallory disclosed the test result or any other information about the patient to another em- ployee. Moreover, the award does not find that Mallory was discharged for asking a coworker to access the patient’s record. Instead, the arbitra- tor wrote: “Simply put, I am compelled to conclude that on March 27, 2020, Mallory committed the charged violation of the Confidentiality Policy. Specifically, on that date, after observing the alert of the patient’s Covid positive test, she accessed the patient’s appointment and audit his- tory for reasons unrelated to the performance of her job duties.”