Discipline Over ‘Mark of the Beast’ Letter OK, NLRB Lawyers Say

Sept. 16, 2021, 8:43 PM

A Seattle hospital could lawfully discipline a worker for emailing coworkers a letter that contained apocalyptic prophecies, Bible verses, and a warning about a “Mark of the Beast” Covid-19 vaccine that would doom a recipient’s soul, the National Labor Relations Board’s legal division said.

The Virginia Mason Medical Center worker’s solicitation of coworkers’ personal email addresses and distribution of the letter—which communicated political and religious ideas with no real connection to the workplace—wasn’t protected by federal labor law, the advice unit in the NLRB general counsel’s office said in a memo made public Wednesday.

The NLRB also published a second advice memo that said food maker Barilla America Inc.’s termination of a worker for spreading false rumors about a coworker’s coronavirus infection passed legal muster.

The memos provide a sense of employer latitude under federal labor law to use discipline when managing workplace conflicts and disruptions related to the Covid-19 pandemic.

The NLRB typically waits until cases are closed before publishing advice memos. The directives provide a look at how the agency’s legal arm views various labor law issues, particularly in cases that didn’t result in complaints. The cases against Virginia Mason and Barilla are both closed.

‘Mark of the Beast’

The 40-page letter at the heart of the Virginia Mason case was an “attempt to convince anyone and everyone that they should personally refuse to get vaccinated,” according to the NLRB’s advice division.

The worker’s letter claimed that a “micro-needle patch” vaccine that’s under development was the “Mark of the Beast” as described in the Bible, according to the memo. The letter, which also contained homophobic and anti-Semitic comments, claimed that the vaccine would alter recipients’ DNA, kill them, and condemn their soul.

The worker ignored instructions to stop distributing the letter, the memo said. Virginia Mason eventually put the worker on paid investigatory suspension, prompting the worker to file a charge with the NLRB.

The advice division said in its memo that the charge should be dismissed. The worker’s letter wasn’t connected to terms and conditions of employment even though the hospital offered vaccines to workers, the division said.

Virginia Mason’s lawyer, Paula Lehmann of Davis Wright Tremaine LLP, and the unidentified worker’s lawyer, SaNni Lemonidis of Lemonidis Consulting & Law Group PLLC, didn’t respond to telephone and email requests for comment.

False Covid Rumors

The advice memo in the Barilla case stems from the company firing a worker for falsely telling coworkers that a colleague had Covid-19.

The memo cited the NLRB’s 2020 ruling in General Motors, which applied the Wright Line test to determine whether discipline was lawful or retaliation when the employer claims it was motivated by a worker’s abusive conduct. The same type of analysis, which involves examining an employer’s justification, is appropriate for the termination based on conveying false Covid-19 rumors, the advice division said.

Barilla reasonably believed that the worker was causing panic among the staff by spreading “false and otherwise highly sensitive information about a co-worker to multiple employees and breached the co-worker’s privacy in doing so,” the division said in the memo.

So even if the worker was engaged in legally protected activity, Barilla was within its rights to terminate, according to the memo.

Barilla’s attorney, Thomas Cunningham of Nyemaster Goode P.C., wasn’t available for comment. The NLRB docket didn’t contain contact information for the unidentified worker or the worker’s legal counsel.

The cases are Virginia Mason, N.L.R.B. Gen. Coun. Advice Memo., Case 19-CA-270734, released 9/15/21 and Barilla America, N.L.R.B. Gen. Coun. Advice Memo., Case 18-CA-259469, released 9/15/21.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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