On March 26, 2026, in a 2-1 decision, the Board held that a hospital lawfully discharged a radiology technician because the employer demonstrated that it would have terminated the employee even absent her protected union activity. See St. Anthony Community Hospital, 374 NLRB No. 77 (2026). The decision offers important guidance for employers navigating workplace investigations that involve employees who engage in union organizing.
The Facts
The employee was a long-tenured radiology technician who was also a lead union organizer. During the union organizing campaign, it was discovered that this employee had accessed a patient’s medical records without authorization and shared that patient’s medical information in violation of HIPAA.
The hospital discovered the breach through the employee’s mother-in-law. The mother-in-law was a receptionist for a chiropractor. A hospital manager, whose husband was in the hospital for medical treatment, happened to visit that chiropractor. While conducting intake for the visit, the mother-in-law mentioned to the manager that she knew the manager’s husband was in the hospital. The receptionist said that her daughter-in-law, who was an x-ray technician, had been updating her about his condition. The manager reported this to the hospital’s compliance department.
The hospital conducted an investigation, which revealed that the employee had accessed the husband’s electronic medical records, even though she had not performed any imaging on him that day. When interviewed, the employee denied disclosing any patient information and stated she could not specifically recall why she accessed the chart, offering only that doctors frequently asked technicians to pull records for patients they had not imaged. Ultimately, the hospital decided to discharge the employee for violating HIPAA policies.
The Wright Line Standard
The Board analyzed the discharge under the framework established in Wright Line, 251 NLRB 1083 (1980), which governs cases alleging that an employer took adverse action against an employee because of union or other protected activity.
Under Wright Line, the NLRB’s General Counsel bears the initial burden of showing that the employee engaged in protected activity, the employer knew of that activity, and the employer harbored animus against it. Once the General Counsel meets this initial burden, the framework shifts the burden to the employer to demonstrate that it would have taken the same adverse action even in the absence of the employee’s protected activity.
The employer does not necessarily have to prove the employee actually committed the alleged misconduct; it must show only that it held a reasonable belief the employee committed the offense and acted on that belief. However, the employer does need to establish that its reasons were not pretextual (i.e., false reasons or reasons not actually relied upon).
The Board Majority’s Analysis
In this case, the Board found that the hospital met its burden under Wright Line that, regardless of the employee’s union activity, it would have discharged her.
Importantly, the Board emphasized that the investigation was triggered by a manager who had no knowledge of the employee’s union activity and no apparent motivation to fabricate a complaint. Further, the hospital’s audit corroborated the complaint because it showed that the employee had, in fact, accessed the patient’s electronic file, including ICU records, and that this was outside the scope of a radiology technician’s typical duties.
Also worth noting is that the Board found the employer acted in accordance with its disciplinary practices and procedures. The employer was able to establish that it had terminated other employees for comparable HIPAA violations.
Accordingly, the Board concluded that the hospital had a reasonable belief that the employee had engaged in misconduct and that its decision to discharge her was not pretextual.
(Note: Member Prouty (D) dissented, arguing that the hospital’s investigation was inadequate, that it ignored exculpatory evidence and plausible explanations, and that the record supported a finding of pretext.)
Key Takeaways for Employers
As an initial matter, this case illustrates a turning of the tides at the NLRB. For almost a year, the NLRB did not have a quorum and was unable to issue decisions. Now that the Board has the minimum three-member quorum (the NLRB may have up to five members), we are starting to see a shift in how precedents such as the Wright Line standard will be applied.
Regarding the practical takeaways, this case demonstrates the importance of treating employees consistently and fairly when it comes to investigatory and disciplinary matters.
It can be particularly difficult to address employee misconduct when it occurs during a union organizing campaign, during a pre-election period, or in the course of other protected activity. Consistency and fairness are key when approaching these situations, as these considerations go to the forefront of defending against an unfair labor practice charge.
First, the investigation itself must be consistent and fair. This includes giving the individual an opportunity to tell their side of the story and collecting evidence from multiple sources. Avoid jumping to conclusions; the investigation should be completed step by step.
Second, the decision needs to be consistent and fair. Consistent with respect to the way the employer has treated other employees in similar situations, and fair in terms of its proportionality.
Third, as one of the elements that the Board reviews in an adverse action situation is whether there was union animus, the decisionmaker should be someone who can make an objective, consistent, and fair decision.
While navigating employee misconduct can be difficult, particularly when union activity is ongoing, it is not impossible. And, as seen here, the Board has provided important clarity about how to assess a disciplinary decision under the Wright Line test.
This Blog Post has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship.