Today’s Labor Updates:
Company’s truthful statements deemed unlawful during union organizing campaign
Community Health Systems violated worker rights, NLRB says
Summary of NLRB Decisions for Week of October 13 – 16, 2015
Company’s truthful statements deemed unlawful during union organizing campaign
Roetzel & Andress Matthew D. Austin and Lindsay M. Bouffard
USA October 16 2015
The Seventh Circuit Court of Appeals recently upheld a National Labor Relations Board decision that an Illinois auto dealership illegally discouraged workers from supporting a union. The dealership’s management met with employees to discuss a union organizing effort. The managers (truthfully) stated that bargaining with the union would “start from scratch” and pointed out that its Orlando dealership had not had any bargaining negotiations despite those workers electing a union nearly three years earlier. The managers (truthfully) advised that pay raises were “absolutely possible” in the event that employees rejected the union and responded that they did not know if some employees would be demoted under union rules.
The Board determined that the managers’ truthful statements all had a tendency to discourage employees from organizing and were therefore unlawful. This case is especially concerning because there were no blatant violations here. Many of the managers’ statements that the Board found violated the Act were spoken in hypotheticals, such as when the managers responded to inquiries about future pay increases. Apparently, the Board is now telling employers that they cannot tell the truth to their employees.
Companies need to walk a fine line between being cautious about what they tell employees during union organizing campaigns and providing as much information as permissible to support the company’s campaign against the union. All managers must be trained on what they cannot say or do. Given the new election rules implemented in April of this year, union campaigns are shorter, making it even more important that companies train their managers before union organizing begins.
Community Health Systems violated worker rights, NLRB says
By Daniel Wiessner
October 19, 2015 5:10 pm
Community Health Systems Inc. and seven of its hospitals violated employees’ rights to discuss working conditions, punished labor organizing and refused to bargain with unions, a U.S. labor agency alleged on Monday.
The National Labor Relations Board’s Office of General Counsel said it issued a consolidated complaint involving 29 charges at hospitals in California, Ohio, Kentucky and West Virginia.
Tennessee-based Community, the second-largest publicly traded U.S. hospital operator, did not immediately return a call seeking comment.
Four of the hospitals named in the complaint were among the 38 that Community in August said it was spinning off into a separate company, Quorum Health Corp., so Community could focus on larger markets.
The complaint was not immediately available because some of the information in it must be redacted, a representative for the NLRB said.
National Nurses United, which represents nearly 185,000 registered nurses, views Community as “the most lawless corporation in the hospital industry,” union spokesman Charles Idelson said Monday.
Idelson accused the company of “playing a shell game” in which it pretends its subsidiaries are independent in an attempt to mask its centralized control of policies throughout its chain of hospitals.
The charges came months after a U.S. appeals court in May ordered Community to pay the legal costs of a union that represented nurses at Fallbrook Hospital near San Diego, California. Fallbrook was also named in Monday’s complaint.
The company refused to bargain with the workers and ultimately closed the facility, which the court in upholding a decision by the NLRB called “obstinate and pugnacious.”
Nine Community Health Systems hospitals in Illinois, including Gateway Regional Medical Center in Granite City, are among the facilities being spun off to Quorum.
Community Health Systems also has four Missouri hospitals: Moberly Regional Medical Center in Moberly, Northeast Regional Medical Center in Kirksville, Poplar Bluff Regional Medical Center in Poplar Bluff, and Twin Rivers Regional Medical Center in Kennett.
Additional reporting by Susan Kelly in Chicago and Robert Iafolla in Washington, D.C.
Summary of NLRB Decisions for Week of October 13 – 16, 2015
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov (link sends e-mail) or 202‑273‑1991.
Summarized Board Decisions
No Published Decisions Issued.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Didlake, Inc. (05-RC-149149) Arlington, VA, October 16, 2015. No exceptions having been filed to the Regional Director’s overruling of an objection to an election held May 11, 2015, the Board adopted the Regional Director’s findings and recommendations, and certified that a majority of the valid ballots had not been cast for the Petitioner, Public Service Employees Local Union 572, a/w Laborers’ International Union of North America, and therefore that it is not the exclusive collective-bargaining representative of the unit employees.
C Cases
No Unpublished C Cases Issued.
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Appellate Court Decisions
Allied Medical Transport, Board Case No. 12-CA-072141 (reported at 360 NLRB No. 142) (11th Cir. decided October 13, 2015)
In a published opinion, the court enforced the Board’s order against this medical transport company that contracts with Broward County, Florida, to provide nonemergency transportation to Americans with Disabilities Act (ADA)-qualified residents. The Board’s order remedies numerous unfair labor practices committed prior to the December 2011 election in which the drivers elected Transport Workers Union of America, AFL-CIO, as their bargaining representative, as well as after the election by disciplining and discharging two employees for supporting the union in the election.
In agreement with the administrative law judge, the Board (Chairman Pearce and Member Hirozawa; Member Miscimarra, dissenting in part) found that, prior to the election, the employer violated Section 8(a)(1) of the Act by surveilling employees’ union activities, telling employees that it would be futile to select the union, interrogating employees about their union activities, soliciting and promising to remedy grievances, promising benefits, soliciting employees to campaign against the union, directing an employee to vote against the union, and threatening to replace employees. The Board found that the employer, after the election, violated Section 8(a)(5) and (1) by unilaterally changing its disciplinary policies regarding shortages in daily fares submitted by drivers, and by disciplining drivers pursuant to those changes without notifying the union. Disagreeing with the judge, the Board found that the employer violated Section 8(a)(3) and (1) by suspending and later discharging two union supporters.
In the enforcement proceeding, the employer contested only the suspension and discharge findings, and argued that the Board’s order was moot because it would be impossible to reinstate the two employees and that it had otherwise complied with the Board’s order. The court held that the Board’s order was not moot because, under settled principles, “[a]n employer’s defense of impossibility based on changes to the business does not prevent courts from enforcing Board orders,” and the courts “have long recognized the Board’s normal policy of modifying its general reinstatement and backpay remedy in subsequent compliance proceedings as [the] means of tailoring the remedy to suit the individual circumstances of each discriminatory discharge.” Additionally, the court noted that an “employer’s compliance with an order of the Board does not render the cause moot.” Rather, the court explained, a Board order “imposes a continuing obligation[] and the Board is entitled to have the resumption of the unfair practice barred by an enforcement decree.”
Upholding the suspension and discharge findings as supported by substantial evidence, the court agreed with the Board that the employees’ union activities were a motivating factor for the adverse actions and that the employer failed to prove it would have taken the same actions absent the employees’ protected activities. Because the employer did not challenge the other unfair labor practices, the court summarily upheld them and enforced the Board’s order in full.
The court’s decision is here (link is external).
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Administrative Law Judge Decisions
Trane Puerto Rico, Inc. (12-CA-144599; JD-58-15) San Juan, PR. Administrative Law Judge Robert A. Giannasi issued his decision on October 15, 2015. Charge filed by Congreso de Uniones Industriales de Puerto Rico.