Campaign Rhetoric Violated Workers' Labor Rights

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By Lawrence E. Dubé

Aug. 12 — A New Jersey nursing home illegally excluded nonprofessional employees from a health-care benefit shortly before they voted on union representation, the U.S. Court of Appeals for the District of Columbia Circuit held ( Care One at Madison Ave., LLC v. NLRB , 2016 BL 261457, D.C. Cir., No. 15-1010, 8/12/16 ).

Enforcing a National Labor Relations Board order against Care One at Madison Avenue LLC, the court in an Aug. 12 opinion by Judge Cornelia T. L. Pillard found the board had substantial evidence backing its conclusion.

The court also approved NLRB findings that Care One violated the National Labor Relations Act by misstating the risks of joining an economic strike and by implying that a policy against workplace violence might limit employees from engaging in legally protected activity.

Although the D.C Circuit has sometimes been very critical of the NLRB, the decision shows the court's readiness to defer to the board's expertise on representation elections and the pre-election conduct of employers and unions.

Dispute During Union Campaign

In January 2012, 1199 SEIU United Healthcare Workers East petitioned for an NLRB election among nonprofessional workers at the Morristown, N.J., facility. An election ended in a 58-57 vote against union representation, with one challenged ballot. The union filed postelection objections and unfair labor practice charges.

Acting on the charges, the board affirmed the findings of an administrative law judge that Care One engaged in several violations of the NLRA (361 N.L.R.B. No. 159, 202 LRRM 1145 (2014)). Care One petitioned for review in the D.C. Circuit.

The NLRB delayed a rerun election pending court resolution of the unfair labor practice charges.

Benefit Action Was Discriminatory, Unlawful

The NLRB found that Care One interfered with employee rights in violation of Section 8(a)(1) of the NLRA, and discriminated against employees in violation of Section 8(a)(3) of the act, when it reversed cuts to an employee health plan about three weeks before the representation election, but excluded the nonprofessional employees who would be eligible to vote.

Pillar said the NLRB had substantial evidence that the timing of the action supported an unfair labor practice finding, and Care One's only justification was an erroneous legal view that it couldn't confer a benefit on eligible voters before an NLRB election.

The NLRB found the reason for withholding the adjustment was to dissuade employees from voting for the union, and Pillard wrote that the board properly found the company's action violated the NLRA's prohibitions on interference and discrimination.

Employer Overstated Risks of Striking

The appeals court upheld the NLRB's decision that the employer illegally warned employees in a campaign leaflet that electing the union could result in a strike, which could “jeopardize your job.”

Care One argued it was accurately warning that strikers could be replaced by other workers, but the court said the leaflet “overstated the risk to workers,” who retain important NLRA rights, including the right to be reinstated immediately after a strike or upon the departure of replacements who have filled their jobs.

The court said the NLRB “reasonably concluded that the Company's leaflet was not truthful and could reasonably be construed as threatening in its blanket statement that striking could cost employees their job.”

Anti-Violence Policy Used as Threat

The D.C. Circuit also enforced the board's decision that Care One violated the NLRA by posting a copy of its workplace violence policy with a memorandum warning that employees could be punished for “threats, intimidation, and harassment.”

In a 2-1 ruling, the NLRB found there was no showing of any threatening behavior that justified posting the memorandum, and the board concluded the action was an implied threat.

Pillard agreed, and wrote, “Care One's violation was to respond to peaceful workplace controversy over unionization by reiterating its anti-harassment policy in a way that, in context, could reasonably be understood as extending that policy to protected activity.”

Judges Judith W. Rogers and Robert L. Wilkins joined in the opinion.

Erin E. Murphy of Bancroft PLLC in Washington argued for Care One at Madison Avenue LLC. Katherine H. Hansen of Gladstein, Reif & Meginniss, LLP in New York argued for 1199 SEIU United Healthcare Workers East. NLRB attorney Milakshmi V. Rajapakse in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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