By Matt Pavich An employer’s one-time grant of a healthcare benefit during the pendency of a union election that excluded union-eligible employees constituted an unfair labor practice, the D.C. Circuit held. In enforcing the NLRB’s petition for enforcement of its decision, the appeals court also ruled that the employer violated the NLRA by disseminating a flyer that threatened job losses and by using the likenesses of union-eligible employees in a captive audience slideshow without their permission (Care One at Madison Avenue LLC dba Care One at Madison Avenue v. NLRB, August 12, 2016, Pillard, N.). The employer ran a nursing home and rehabilitation facility network in New Jersey. On January 1, 2012, it reduced healthcare benefits and increased costs for all employees. Less than one month later, the union filed an organizing petition to represent a class of employees at one of the facilities. The employer reversed the cuts and announced the restoration of benefits three weeks before the scheduled election. It did not, however, issue the memorandum announcing the restoration to any union-eligible employees, nor did it say if their benefits would also be restored; it blamed its failure to do so on the pending election. During that election, the employer distributed anti-union leaflets asking if the employees wanted to "jeopardize" their jobs by giving the union the power to call a strike. Two days before the election, the employer held a mandatory meeting in which the facility administrator told the eligible employees that they were a "family" and asked them to vote against the union because they were "a family." In between those statements, he presented a slideshow reiterating the family theme that used the likenesses of union-eligible employees without their consent. The union lost the election by one vote and filed objections to the election and an ULP charge. Three days after the election, the administrator posted a memorandum addressing the election, stating that he had heard that several employees were not treating fellow employees with dignity and respect. The memo included the employer’s Workplace Violence Prevention policy. There had been no record of any threats or intimidation either before, or after, the memo was posted. The NLRB found that the conduct constituted ULPs and the employer appealed. Benefits restoration. The D.C. Circuit granted the Board’s cross-application for enforcement. The court found that the pre-election benefit restoration was a ULP. The court noted that the restoration was a one-time, system-wide benefit grant that came weeks before the election and which excluded only union-eligible employees. Thus, the employer had discriminated against union eligible-employees and had discouraged union membership. The court found no evidence of a legitimate business reason for the restoration and held that the timing of the benefit, the exclusion of the union-eligible employees, and the employer’s admitted desire not to issue the grant to those employees because of the election all supported the Board’s finding of an unfair labor practice. The employer argued that had it included the union-eligible employees, the Board would have found that it was trying to "buy" their votes, but the court rejected that argument. The court found that employers may make regularly scheduled benefit changes during an election, if they do not discriminate against employees based on their participation in protected activities. In the instant case, however, the employer made a one-time, discretionary benefit grant without a legitimate business reason that excluded union-eligible employees. Employer’s leaflet created misleading fear of job loss. The court also ruled that the employer’s leaflet constituted a ULP. While employers have the right to make predictions about possible results of unionization, the court noted that they do not have the right to make coercive statements threatening job loss. The leaflet asked the employees if they wanted to give the union the power to jeopardize their jobs by calling a strike. The court found that this leaflet did not accurately characterize the risks of a strike and, thus, was an unfair labor practice. The court noted that under the NLRA, striking workers remain employees of a company so long as they make an unconditional offer to return to work. The leaflet did not make this distinction clear and, therefore, the court found that it was a coercive statement. Employee slideshow. Next, the court found that the slideshow constituted a ULP. The slideshow came in the context of an anti-union meeting and while it did not contain any anti-union statements, it did continue the "family" theme that had been at the heart of the employer’s anti-union campaign. Moreover, the slideshow used the likenesses of union-eligible employees without their permission, violating the NLRA’s prohibition on using employee images without authorization to impute to those employees opinions about unionization. Post-election memo. Lastly, the court found that the post-election memorandum urging employees to treat one another with dignity and respect also constituted a ULP. The court stressed that employers have the right to require employees to act civilly in the workplace, but found that the memo went too far. The memo referenced the just-concluded election and urged employees to treat each other respectfully or else risk violating the attached workplace violence prevention policy and incurring discipline. Given the context in which the memo was issued and lack of any recorded threats or intimidation that could have warranted the posting, the court found that a reasonable employee could interpret the memo as a warning that discussing unionization, a protected activity, could result in discipline. Thus, the court found that the memo constituted an unfair labor practice and granted the NLRB’s petition to enforce its decision.
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