Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...
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.
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.
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.
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.”
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 email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
The text of the opinion is available at http://www.bloomberglaw.com/public/document/Care_One_Madison_Ave_LLC_v_NLRB_No_151010_Consolidated_with_15102.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)