NLRB Advice Memoranda, Virginia Mason, National Labor Relations Board, (Jul 26, 2021)

The Region submitted this case for advice on whether the Employer violated Section 8(a)(1) of the Act by disciplining an employee for engaging in protected concerted activity. We conclude that the Employer did not violate Section 8(a)(1) because the employee was not engaged in protected concerted activity as any connection between the employee's activity and workplace concerns was highly attenuated and, therefore, not for the purpose of mutual aid or protection.

Virginia Mason Medical Center (“Employer”) operates an acute care hospital in Seattle, Washington, at which it employs the Charging Party as ​     ​ . Around October 2020, the Charging Party began to solicits ​     ​ co-workers' personal email addresses and send them an approximately 40-page letter entitled, “Mark of the Beast.” Ultimately, the Charging Party emailed the letter to at least 40 current employees and ten former employees.

The letter contained, among other things, apocalyptic predictions, Bible verses, images, and links to websites. A portion of the letter claimed that various parties were currently developing a “micro-needle patch” COVID-19 vaccine, and that this vaccine was the “Mark of the Beast” as described in the Bible. The Charging Party asserted in the letter that this version of the vaccine would alter the DNA of anyone who received it, kill them, and condemn their soul. The letter also contained various anti-Semitic and homophobic portions as well as portions disparaging politicians and followers of numerous religions as heretics and “antichrists.” The letter made no mention of the Employer or its employees, or employees in general. It did not mention distribution by employers of COVID-19 vaccines or employer programs to encourage their employees to receive COVID-19 vaccines.

On October 30, after hearing from co-workers who were alarmed by the letter, the Employer met with the Charging Party and directed ​     ​ to cease soliciting ​     ​ co-workers' personal email addresses via the Employer's email system or during working time for the purpose of distributing ​     ​ letter. The Employer asked the Charging Party if ​     ​would be able to perform​     ​ job as ​     ​ given the views espoused in ​     ​letter. The Charging Party assured the Employer that ​     ​ could, and stated that’​     ​ concerns with the COVID-19 vaccine centered on the micro-needle patch vaccine that did not yet exist. Notwithstanding the October 30 discussion, the Charging Party continued to solicit ​     ​ co-workers' personal email addresses and send them the letter.

On December 7, the Employer emailed its staff announcing that it would begin offering the COVID-19 vaccine at work. The Employer noted that while it encouraged its employees to get vaccinated, the vaccine was optional. On ​     ​ after receiving reports of the Charging Party's continued solicitation and distribution of the letter, the Employer placed the Charging Party on a paid investigatory suspension. During the suspension, the Employer told the Charging Party that ​     ​ was continuing to violate its solicitation and distribution policies and also disrupt the workplace by sending ​     ​ letter to co-workers. On ​     ​ the Employer issued a written warning to the Charging Party for the same. On ​     ​ the Charging Party returned to work and continues to work for the Employer through the present.

The Charging Party's Activity Was Not for the Purpose of Mutual Aid or Protection

To be protected under Section 7 of the Act, employee conduct must be both “concerted” and engaged in for the purpose of “mutual aid or protection.” [1] The latter element “focuses on the goal of concerted activity,” specifically, “whether the employee or employees involved are seeking to ‘improve terms and conditions of employment or otherwise improve their lot as employees.— Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151, 153 (2014) (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). The “mutual aid or protection” clause covers employee efforts to “improve their lot as employees through channels outside the immediate employee-employer relationship,” and activities “in support of employees of employers other than their own.” Eastex, 437 U.S. at 565. See EZ Industrial Solutions, LLC, Case 07-CA-193475 Advice Memorandum dated August 30, 2017 (“Day Without Immigrants” strike was for “mutual aid or protection” because of nexus to workplace concerns, including immigration raids in the workplace and deportation of unauthorized workers). However, at some point the relationship between the activity and employees' interest as employees “becomes so attenuated that an activity cannot fairly be deemed to come within the ‘mutual aid or protection’ clause.” Eastex, 437 U.S. at 567-68. See Universal Syndications, Inc., 347 NLRB 624, 629-631 (2006) (employee discussions about security guard stealing money employees had intended as tip to pizza delivery driver not for “mutual aid or protection”); Five Star Transportation, Inc., 349 NLRB 42, 44-45 (2007), enforced, 522 F. 3d 46 (5th Cir. 2008) (employee letters to school committee not for “mutual aid or protection” because raised generalized safety concerns rather than concerns involving terms and conditions of employment).

Here, the Charging Party's solicitation of ​     ​ coworkers in order to provide them the “Mark of the Beast” letter lacks any meaningful nexus to workplace concerns. First, the Charging Party began to distribute ​     ​ letter before the Employer announced that it would begin offering the vaccine to its employees. The Charging Party's communications were addressed to “family and friends,” and made no mention of the Employer or its vaccine offering, or of employees or employee vaccine programs generally. The Charging Party's letter and discussion during the October investigatory interview confirmed that ​     ​ concern related to a purported micro-needle patch vaccine, which the Employer never offered and likely did not exist. Lastly, the vast majority of the letter did not even relate to the vaccine, but consisted of attempts to proselytize and the disparagement of other religions and groups. [2]

In sum, the letter primarily consisted of a religious or political communication and was devoid of a sincere connection to terms and conditions of employment. The Charging Party's activity was an attempt to convince anyone and everyone that they should personally refuse to get vaccinated. The mere fact that the Employer later offered the vaccine to its employees is too attenuated of a connection to bring the Charging Party's activity under the protection of the Act. Consequently, the Region should dismiss the allegation that the Employer violated Section 8(a)(1) when it disciplined the Charging Party.

This email closes this case in Advice as of today. Please feel free to contact us with questions or concerns.

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