By Ronald Miller, J.D. Substantial evidence supported NLRB findings that an employer unlawfully interrogated its employees about their union sympathies and solicited their grievances, and that it retaliated against several employees by disciplining and discharging them due to their pro-union activities, ruled the Third Circuit. The appeals court rejected the employer’s contention that the stricter policies it instituted after a union election were actually motivated by a history of poor nursing home performance that long predated union activity at the facility. Deficiencies uncovered by state regulators in a survey were deemed “isolated,” and were successfully corrected within weeks (1621 Route 22 West Operating Co. dba Somerset Valley Rehabilitation and Nursing Center v. NLRB, June 6, 2016, Jordan, K.). Union campaign. The unionization drive began around June 2010, after the employer announced a reduction in employee hours and changes in work schedules. According to the employer it revamped operations after the New Jersey Department of Health and Senior Services conducted a survey of its facility that resulted in two citations for violations of state standards. The employer suggested that the poor survey “resulted in increased scrutiny on the Somerset nursing department.” Nurses contacted the VP for human resources regarding the schedule changes to no avail. Consequently, the nurses made contact with the union and met with a union organizer. The nurses organized into a bargaining unit, distributed and collected union authorization cards, held meetings, and organized employees to wear pro-union stickers. The campaign culminated in a union election. The employer campaigned vigorously against the union, which it had a right to do. However, some of its actions crossed the line into unfair labor practices. In addition to a “vote no” campaign, management held meetings and received complaints about the proposed schedule changes. Ultimately that schedule was not implemented. When employees pressed management about ongoing policies, an official noted that any policy changes during the union election would be illegal, but he asked the employees to give the employer a chance to improve conditions. Several employees testified that managers talked to them personally about the union and urged them to vote against it. Management also rectified some specific complaints during the campaign. Nevertheless, the union won the election and was certified by the NLRB. Post-election conduct. At issue in this case is the Board’s conclusion that four employees were discharged as retaliation for their unionization activities. Those employees worked to organize the nurses, appeared in a union brochure and YouTube video, and served as the union’s election observers. Those facts, paired with the employer’s animus toward the union led an administrative law judge to decide that the nurses’ union activities “were well known to” the employer which targeted them for retaliation. Only 11 days after the election, the employer issued attendance warnings to two of the nurses. Prior to the election, the employer was lax with regard to attendance, and the employees had not previously received written discipline for their attendance record. The employer also took actions related to performance-based discipline. Here, the ALJ noted that such discipline became significantly stricter immediately after the election. Specifically, the ALJ noted that there were suspicious circumstances surrounding the dismissal of each of the four employees at issue. Two of the employees were discharged for record-keeping infractions that were common before the election. The third was discharged for improperly administering a zinc pill to a patient. And the fourth employee was discharged for failing to reconcile discrepancies between manually typed schedules and entries in the computerized system for the prior weekend’s shifts. According to the ALJ, the discipline was unusually harsh, and management was watching union organizers closely for infractions. Additionally, the ALJ found two retaliatory acts against other employees. FVRA objection. As an initial matter, the Third Circuit reviewed the employer’s contention that the NLRB’s Acting General Counsel was serving in violation of the Federal Vacancies Reform Act (FVRA) at the time he filed the initial complaint against it, so the subsequent actions of the Board were infirm. However, the appeals court observed that the employer failed to follow the process established by Congress for challenging the lawfulness of the Board’s actions thereby precluding it from pressing its FVRA claim. In addressing challenges to the appointments of Board members, the Fifth, Sixth, and Eighth Circuits have determined that they need not hear objections that were unpreserved. When the D.C. Circuit heard Noel Canning v. NLRB, it did so because the objection satisfied the “extraordinary circumstances” exception to the Section 10(e) exhaustion bar. Since the employer had no way around the Section 10(e) exhaustion requirement, the appeals court lacked jurisdiction to consider its FVRA objection. Unfair labor practices. Turning to the merits, the Third Circuit concluded that the employer’s challenges to the correctness of the Board’s determination that it engaged in unfair labor practices failed. First, the Board found that the employer was unlawfully motivated when it disciplined and discharged four union activists because of their protected activities. Additionally, the Board determined that the employer acted unlawfully by interrogating employees about their union sympathies, and solicited their grievances. With respect to employee interrogations, the Board found that management interrogated several employees before the election. Specifically, employees were asked how they and/or other employees would vote, were asked to “vote no” and give management a chance to improve conditions, and were asked if they could convince coworkers to vote no. Credited evidence supported the Board’s conclusion that management officials questioned employees in an unlawfully coercive manner. Moreover, credited employee testimony established that after the union election petition was filed, management told employees it would try to “fix” things. Thus, the employer acted unlawfully when it solicited employee grievances, promised to fix them, and, in some cases, did fix them during the union campaign. Retaliation. Similarly, the appeals court found substantial evidence supported the Board’s conclusion that four employees were targeted by management because of their union support and that the employer’s justifications for the adverse employment actions it took were simply pretextual. After rejecting the employer’s contention that it instituted changes because of longstanding poor performance, the court observed that the timeline it urged supported the Board’s finding the employer was unlawfully motivated when it disciplined and discharged the four union activists.
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