NLRB Finds Nursing Home Operator Violated Numerous NLRA Provisions Through Its Conduct During Bargaining With Newly Recognized Unit

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: May 29, 2020

In 2010, Atlanticare Management acquired ownership of a nursing home.  The nursing home employs employees in various classifications, including licensed practical nurses (LPNs), certified nursing assistants (CNAs), aides, and maintenance workers. These employees work on a full time, part time, or per diem basis.

In 2012, 1199 SEIU United Healthcare Workers East (Union) engaged in a organizing campaign at the nursing home.  In 2012, then full time CNA Catherine Thomas participated in the Union organizing campaign and was among 10-20 employees who stood in the facility’s driveway once a week and talked to employees in support of the Union as they arrived for work.  In October 2012, the Union’s withdrew its representation petition, and no election was conducted in connection with the 2012 campaign.

In 2015, the Union engaged in a second organizing campaign.  In November 2015, the Union filed a representation petition for a unit of non-professional employees, including licensed practical nurses (LPNs), certified nursing assistants (CNAs), aides, and maintenance workers.  Atlanticare Management opposed the Union’s organizing campaign. However, in December 2015, the election was held and the Union was elected as the bargaining representative of unit employees.  The Union was later certified as the bargaining representative of the unit.

Prior to the election, Thomas, who was working on a per diem basis, requested a per diem shift on the day of the election, so she would not have to come to work just to vote. Atlanticare Management informed Thomas the facility was fully staffed and that it did not need her to work that day.  When Thomas came to the facility to vote in the election, two CNAs told her the facility was understaffed that day.

Shortly after the election was conducted, Atlanticare Management cancelled its annual Christmas party even though it had already paid a deposit on the location where the party was to be held.  In January 2016, Atlanticare Management changed its practice of providing wage increases of 2 percent, 2.25 percent, and 2.5 percent for overall annual appraisal ratings of good, very good, and outstanding, respectively, to wage increases of 1.25 percent, 1.5 percent, and 1.75 percent for ratings of good, very good, and outstanding, respectively.

The parties began negotiations for an initial collective-bargaining agreement in March 2016.  In advance of negotiations, the Union requested certain information necessary for bargaining.  Atlanticare Management sent the Union some, but not of all, of the information it requested.  Despite repeated attempts to obtain the requested information, Atlanticare Management refused to provide the requested information.

During bargaining, Atlanticare Management refused to bargain economic issues between March and October 2016.  When Atlanticare Management began to bargain economic issues, the company took the position that any current wages and benefits not specifically covered by its proposals would be eliminated.  Atlanticare Management then engaged in regressive bargaining on the economic issues.

Atlanticare Management posted a memorandum on employee bulletin boards.  The first stated that Union business should not be conducted on the facility property or during work hours and continuation of this practice would result in discipline and possible termination.

The Union filed an unfair practice charge alleging that Atlanticare Management: (1) unilaterally reduced the annual wage increases of unit employees and did so because employees elected the Union as their bargaining representative; (2) failed to provide the Union with requested information, delayed the production to the Union of other requested information, failed to meet and bargain with the Union at reasonable times, and engaged in bad faith surface bargaining; (3) discharged Catherine Thomas by ceasing the assignment to Thomas of per diem shifts; and (4) promulgated and maintained (a) an overly broad rule forbidding employees from engaging in union business on company property or during work.

Based on the evidence provided during the trial on the charge, the presiding Administrative Law Judge (ALJ), in December 2018, ruled in the Union’s favor on each of the allegations described above.   Regarding the wage reduction claim, the ALJ held that Atlanticare Management violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by unilaterally changing its practice of granting employee wage increases in the range of 2 percent-2.5 percent depending upon the employee’s appraisal rating.  The ALJ concluded that Atlanticare Management unilaterally changed the “status quo” as it pertained to wage increases, and did not provide the union notice or an opportunity to bargain the change.

The ALJ also concluded that Atlanticare Management violated Section 8(a)(5) and (1) of the Act by refusing to furnish certain information and unreasonably denying the production of other information.  The ALJ held that an employer must provide requested information that is “presumptively relevant” to the union’s performance of its role as collective-bargaining representative and that Atlanticare Management failed to provide such information.

The ALJ concluded that Atlanticare Management discharged Thomas by refusing to assign her per diem shifts because of her union activity.  The ALJ found that Thomas was an active and open Union supporter during the 2012 organizing campaign and that antiunion animus was a substantial or motivating factor in the employment action against her.

Regarding the memorandum, the ALJ concluded that the memo violated Section 8(a)(1) of the Act by posting an overbroad rule, which prohibited employees from engaging in union business on company property or during work hours.  The ALJ concluded that the memorandum was not “facially neutral,” but rather “explicitly restricts activities protected by Section 7.”

The National Labor Relations Board considered the ALJ’s decision and affirmed the judge’s rulings, findings, and conclusions.

Atlanticare Mgmt. LLC d/b/a Putnam Ridge Nursing Home & 1199 Seiu United Healthcare Workers E. (Feb. 11, 2020) 369 NLRB No. 28.