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Unionizing Nursing Home RNs More Difficult

Posted on Tue, Aug 13, 2013 @ 08:33 AM

Jack B. Harrisonby Jack B. Harrison

On July 2, 2013, a divided panel of the United States Court of Appeals for the Sixth Circuit in GGNSC Springfield LLC, d/b/a Golden Living Center-Springfield v. NLRB, No. 12-1529 (6th Cir. July 2, 2013), held that registered nurses (“RNs”) who worked as charge nurses in a nursing home were supervisors under the National Labor Relations Act.  In so holding, the Court determined that the RNs exercised sufficient independent judgment in issuing discipline to non-RN employees to be considered supervisors.  The net impact of this decision was to make clear that the RNs in this case did not have the right to organize and collectively bargain.

FACTS AND PROCEDURAL BACKGROUND

The nursing home at issue in this case, Golden Living Center, is located in Springfield, Tennessee.  Golden Living Center has approximately 100 employees, including 12 registered nurses (“RNs”), 10 licensed practical nurses (“LPNs”), and 46 certified nursing assistants (“CNAs”).  Under the organizational structure of Golden Living Center, RNs and LPNs are considered “charge nurses,” who report directly to the Director of Nursing.

In 2011, the International Association of Machinists and Aerospace Workers, AFL-CIO filed a petition with the National Labor Relations Board (“NLRB”) seeking to represent the RNs employed by Golden Living Center in collective bargaining.  Golden Living Center challenged the petition, arguing that the RNs, as charge nurses, were supervisors under the National Labor Relations Act and, thus, not allowed to unionize.  In November 2011, the Regional Director of the NLRB determined that for the purposes of the Act, the RNs were not supervisors.  The Regional Director, therefore, granted the petition, certified the bargaining unit, and ordered an election.  Subsequently, an election was held and the RNs elected the union as their bargaining representative.  However, Golden Living Center refused to recognize or to bargain with the union.  As a result of this refusal to bargain, an unfair labor practice complaint was filed with the NLRB by the union.  The NLRB upheld the complaint and ordered Golden Living Center to bargain.  A petition for review of the NLRB decision was then filed by Golden Living Center.

COURT OF APPEALS DECISION

The first issue addressed by the Court of Appeals was whether the NLRB even had the authority to issue an order.  This argument centered on the decision by the Court of Appeals of the D.C. Circuit in Noel Canning v. N.L.R.B., 705 F.3d 490 (D.C. Cir. 2013), holding that three of the Board’s five members, whom President Obama had appointed during a Congressional recess, had been appointed in violation of the Constitution because they were appointed without the advice and consent of the Senate.  The Court of Appeals refused to consider this argument, asserting that “[e]rrors regarding the appointment of officers under Article II are ‘nonjurisdictional.’”

In considering the merits of the case before them, the Court of Appeals focused on whether or not the RNs, as charge nurses, had the authority to “discipline” CNAs, such that they would be considered supervisors under the Act.  A majority of the panel found that the RNs in question did have disciplinary authority, such that they were supervisors.  Under Golden Living Center’s discipline policy, CNAs were to receive four written warnings before being terminated.  Under this disciplinary policy, RNs were given the authority to issue written memoranda in the event of misconduct by a CNA, with the written memorandum by the RN immediately triggering a written warning.  A majority of the panel found that these written memoranda constituted “discipline” because they “’lay a foundation’ for future adverse employment action.”  Additionally, the majority found that under the policies of Golden Living Center, the RNs exercise independent judgment when issuing discipline, in that they “can either do nothing, provide verbal counseling (and decide whether to document the counseling), or draw up a written memorandum.”  In dissent, Judge Merritt strongly disagreed with the findings of the majority, arguing that the majority’s decision was simply results driven and anti-union.  Judge Merritt asserted that the majority was indulging in “linguistic wordplay over the word [discipline] without even referring to or trying to understand the purpose of the statutory language at issue.”

CONCLUSION

While this decision is certainly a victory for healthcare workers and provides some guidance to employers as to what may constitute the exercise of discipline for the purposes of determining the supervisory status of an employee, the split in the decision certainly makes it clear that disagreement remains in the courts as to what constitutes “discipline” for the purposes of determining whether an employee is or is not a supervisor.  However, this decision does make it clear that, at least in some situations, the exercise of discipline may include more than just suspensions and terminations.  Prudent employers should continue to pay attention to the roles various employees may play within their disciplinary policies and programs and continue to monitor developments in the courts regarding these issues.

Tags: Unionizing Nursing Home RNs, Sixth Circuit, NLRA, NLRB, National Labor Relations Board

Court of Appeals Strikes Down NLRB Poster Rule

Posted on Wed, May 08, 2013 @ 12:30 PM

Jack B. Harrisonby Jack B. Harrison

On Tuesday, May 7, 2013, in National Ass’n of Manufacturers v. National Labor Relations Board, a three-judge panel of the United States Court of Appeals for the D.C. Circuit issued an opinion striking down a controversial rule issued in 2011 by the National Labor Relations Board (“NLRB”).  This rule would have required companies to post a notice affirmatively advising employees of their rights under federal labor law, including the right to form or join a union.  While the rule had been scheduled to go into effect on April 30, 2013, its implementation had been stymied by the issuance of an injunction and several court challenges.

The Court of Appeals was troubled by the fact that the rule made the failure of a company to post the required poster an unfair labor practice in itself or, at a minimum, prima facie evidence of union animus in an unfair labor practice proceeding.  In striking down the rule, the Court of Appeals relied upon section 8(c) of the National Labor Relations Act (“NLRA”), which states:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. § 158(c).  Using this provision, the Court of Appeals ultimately concluded that if the expression of views was protected under the NLRA against a charge that such an expression was an unfair labor practice, so long as the expression was noncoercive, so too was silence or the failure to express a particular viewpoint.  In his opinion, Senior Judge Randolph wrote, "[t]his is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union."  As a result, the Court of Appeals concluded that the NLRB’s poster requirement rule violated section 8(c), in that the rule made the failure of an employer to speak in a particular manner a per se unfair labor practice.

This may mean the end of the line for the NLRB’s poster requirement rule.  However, the NLRB could seek rehearing of this decision by the en banc Court of Appeals for the D.C. Circuit or the NLRB could seek to immediately appeal this decision to the Supreme Court.  Additionally, a federal district judge in South Carolina in April, 2012 also held that the NLRB lacked the authority to issue this poster requirement rule.  That South Carolina decision is currently on appeal to the United States Court of Appeals for the Fourth Circuit.  In the unlikely event that the Fourth Circuit should reverse the district court’s holding and uphold the NLRB’s rule, a split in the Circuits would exist, making it more likely that the Supreme Court would ultimately resolve the issue.

Thus far, the NLRB has had a very rough ride before the D.C. Court of Appeals of late.  Because implementation of the poster requirement rule has been placed on hold as a result of various challenges, employers are currently relieved of the obligation to prominently display the poster in their workplaces.  Prudent employers should continue to monitor this issue and the actions taken by the NLRB in this area.  We will continue to provide updates as new issues arise.

Tags: Poster Rule, NLRA, NLRB, National Labor Relations Board

Emerging Employment-Related Issue: Protected Concerted Activities

Posted on Fri, May 18, 2012 @ 02:40 PM

Alexis L. McDanielby Alexis L. McDaniel

Imagine you’re the general manager of a luxury car dealership.  One day, after browsing through pictures of your children on Facebook, you notice a posting made by one of your salesman criticizing what he describes as the cheap food of hot dogs and chips you provided at your recent sales event.  Although no other salesman commented on the posting, prior to this incident, the salespeople met with management to discuss their concerns about the event.  Infuriated by the posting, you want to fire your salesman on the spot, but should you? 

No, not according to the decision in Karl Knauz Motors, Inc., Case No. 13-CA-46452 (September 28, 2011).  In this case, an ALJ found that the critical comments made by the salesman were protected concerted activities because “food offerings” could have affected car purchases and thereby wages of salespeople.

Under Section 7 of the National Labor Relations Act (“NLRA”), an employee has the right to engage in protected concerted activity and the National Labor Relations Board (“NLRB”) has provided guidance on what this entails.  Based on these guidelines, the following are examples of protected activities:

  • Two or more employees addressing their employer about improving their working conditions or pay;
  • One employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions; and
  • Two or more employees discussing pay or other work-related issues with each other. 

Prior to the emergence of social media, questions regarding concerted activities were typically confined to the work environment.  For example, a supervisor might overhear Joe and Jane discussing their salary near the water cooler.  Even if the employer considered employee salaries a confidential matter, Joe and Jane’s discussion would be protected under Section 7 of the NLRA.  Now, with websites like Twitter and Facebook, employees have often moved beyond their own work environment and into the world-wide audience these social websites provide.  The end result is a tension between an employer’s concern of negative publicity and loss of business, with the employees’ right to engage in protected concerted activity. 

Although it will take some time before the new social media cases are decided by the NLRB and reviewed by the courts, in two reports, dated August 18, 2011 and January 24, 2012, the Acting General Counsel of the NLRB discusses principles to determine whether an employee’s social media activities are protected.  These emerging principles include the following:

  • By intent or result, employee conduct on social media must involve group activity relating to terms or conditions of employment. 
  • Employee social media posts that directly solicits co-workers or tries to promote group action regarding a term or condition of employment will be protected.
  • Employee social media post that suggests an intent to promote group action or support will likely be protected.
  • Employee social media post that does not expressly solicit co-worker action or support may still be protected if it generates a substantive conversation about terms and conditions of employment. 
  • Post that is not directed to co-workers, or does not address issues of mutual concern to other employees, will likely be viewed as unprotected griping. 
  • Disparaging comments about an employer or supervisors are generally protected unless they:
  • are not related to a dispute over working conditions
  • are maliciously defamatory
  • focus solely on company products or business policies
  • appeal to racial, ethnic, or similar prejudices

It all boils down to this—an employer must be careful when responding to an employee’s social media posting.  There can be severe consequences for an employer that does not take the appropriate steps to evaluate whether a social network posting is protected concerted activity under the NLRA.

Check back often, as there will definitely be new developments to this ongoing issue.

Tags: Social Media, Twitter, NLRA, National Labor Relations Act, Protected Concerted Activity, Facebook