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ARBITRATION PROCEEDING BEFORE MARGARET M. KERN
YALE-NEW HAVEN HOSPITAL
and Index No. 054
NEW ENGLAND HEALTH CARE
EMPLOYEES, DISTRICT 1199, SEIU
Ernest J. Collazo, Esq. and John P. Keil, Esq., Collazo Carling & Mish LLP, for Yale-New Haven Hospital
John M. Creane, Esq., Law Firm of John M. Creane, Ellen Dichner, Esq. of Gladstein, Reif & Meginniss, LLP, for New England Health Care Employees, District 1199, SEIU
Statement of the Case
MARGARET M. KERN, Arbitrator. This case was submitted for resolution on December 6, 2006 pursuant to the terms of the Election Principles Agreement (agreement) entered into between Yale-New Haven Hospital (employer) and New England Health Care Employees, District 1199, SEIU (union) on April 13. This case concerns statements made by manager Judy Grant on November 29 at a meeting of employees convened by the employer to discuss the union.
A hearing was held on December 8 at which all parties were present. Witnesses were examined and cross-examined under oath. Documents were admitted into evidence (Appendix A) and counsel for both sides gave oral argument at the conclusion of the proceedings. Both sides were also given the opportunity to file a post-hearing position statement.
- The Facts
- November 29 meeting
April Robinson is a PCA II who has been employed by the employer for 10 years. She works in the resource department and floats among medical surgery units. Judy Grant is a patient services manager for the resource support and transport units. She supervises approximately 165 eligible employees including Robinson.
On November 29, Grant and another manager, Alice Lewis, convened a staff meeting of approximately 13 PCAs from the evening shift, including Robinson. The PCAs were required to attend the meeting which was held on work time. During the first part of the meeting, which lasted approximately 15 minutes, Grant discussed employment matters including overtime approval sheets, health benefits, and recent promotions within the department. At the conclusion of the staff meeting, Grant announced that she would then conduct a “voluntary” meeting to discuss the union. She told the assembled employees they were free to stay or to leave. Initially, all of the PCAs in attendance remained seated. During the course of the union meeting that followed, one employee got up and left. The union meeting lasted approximately 45 minutes and was also held on work time.
Robinson gave the following account of the union meeting. According to Robinson, Grant began the meeting by stating an election date had been set and she encouraged all employees to vote. She then talked about a scheduled increase in union dues. Grant said that in 2007 union dues would be charged as a percentage of gross pay. Robinson took exception to Grant’s representation and stated that dues were not going to go up. Grant held up a copy of the SEIU constitution and bylaws and said that the document provided that dues would be charged as a percentage of gross pay. Grant then stated that the union used dues money to finance political organizations, for lobbying purposes, and to organize Wal-Mart.
According to Robinson, Grant then moved on to the subject of the $1.75 hourly wage differential paid to all PCAs who float among departments. Grant said if the union came in the PCAs might lose this differential because the union is all about equal work for equal pay. Grant also said if the union came in she would have to alter the way she assigned overtime from the voluntary basis upon which it is currently assigned to a seniority basis. She pointed out that junior PCAs who currently enjoy overtime might not get it under a seniority system.
According to Robinson, Grant went on to discuss the way employees would communicate with their supervisors if the union came in. She said if the union came in and employees had to request a day off for a doctor’s appointment or personal business, they could not make the request without a union steward present. She said employees would therefore lose their privacy.
Finally, according to Robinson, Grant mentioned Arden House, a local nursing home. Grant said the nursing home was under new management and that employees who were in the union lost their jobs. Grant then asked the assembled PCAs, “How’s that for job security?”
Judy Grant gave the following account of the union meeting. Grant began her remarks by discussing the upcoming election and the secret ballot process. She then turned her attention to dues. She said most union dues are based upon an hourly rate and that union dues for employees of the hospital could be between $400 to $700 per year. She also said the maximum dues amount was going to be increased to $65 per month. According to Grant, Robinson brought up the fact that the SEIU was changing its dues structure to a percentage of gross pay but said that the SEIU dues structure would not apply to District 1199 members. Grant responded she was not aware that the SEIU dues structure would not apply to District 1199 members.
According to Grant she then discussed the union’s LM-2 filing and observed the union spent members’ dues money to organize Wal-Mart. Grant denied saying anything about politicians or lobbyists.
With respect to the subject of the wage differential, Grant testified she told employees that most unions believe in equal work for equal pay. She said she believed the PCAs in the resource department perform different types of work and that is why she had worked so hard to get them the differential. She said she did not believe a union steward would understand the different types of work performed by resource department PCAs.
Grant testified that when she was asked a question about overtime she said that in most union shops overtime is given out by seniority and that if the union came in she would have to go through a list and call people by seniority for overtime.
Grant further told employees that if the union came in, they would not longer be able to communicate with her directly, but rather, would have to have the “third party” union involved. One employee expressed dismay at this, stating she didn’t need other people to know her personal business.
Finally, Grant testified that an employee named Jeanne brought up the subject of Arden House and talked about how unionized employees had lost their jobs. Grant testified she looked at Robinson and said, “That's job security for you."Other union meetings conducted by Grant Grant testified that since about November 29 she has held similar union meetings with all of the employees she supervises and that in many cases employees have attended more than one such meeting.Other union meetings conducted by the employer Edward Dowling is the senior vice-president for human resources. Dowling testified that department meetings are held on employees’ work time. He emphasized, “Both before the agreement and certainly during the agreement that process has not changed.”Testimony of David Pickus The bylaws of District 1199 govern the amount of dues paid by employees and those bylaws set out an hourly-wage-based formula for dues calculation. In contrast, the SEIU constitution and bylaws provide for a percentage-of-salary formula for dues calculation. David Pickus testified that District 1199 has declined to adopt the percentage-based dues structure of the SEIU. In support of that testimony, the union introduced in evidence the 1991 affiliation agreement between District 1199 and the SEIU which provides that District 1199 retains the right to set its own dues structure. Pickus further testified the employer is aware of the hourly-wage-based formula used by District 1199 since the employer has been relying on that schedule for a number of years to deduct dues for the dietary workers represented by District 1199. Moreover, with respect to the dues structure that is to become effective in January 2007, the union introduced a letter from District 1199 to the employer dated November 20 in which District 1199’s comptroller advised the hospital that it would continue to charge dues based upon the hourly-wage-based formula. With respect to Arden House, the local nursing home discussed at the November 29 meeting, Pickus testified the union has represented employees at that facility for the past seven years. Several months ago, the nursing home underwent a change in ownership. The union met with the new owner and the owner adopted the existing collective bargaining agreement. Pickus testified there were no layoffs or loss of employment by any of the Arden House employees represented by the union.
- Analysis
- Unlawful polling of employees
The employer does not dispute that employees were summoned to the November 29 meeting and were required to attend the first part of the session. The credible testimony of Robinson establishes that after a 15-minute discussion of work-related matters, employees were told the balance of the meeting would deal with the union. At that point, manager Grant told employees they were free to leave and Grant and Lewis were in a position to observe who, if anyone, chose to leave. The employer thus put employees in the position of having either to accept or reject the employer’s proffer of listening to an anti-union presentation, thereby pressuring them to make an observable choice regarding their sentiments about the union. The Board and courts have found this type of subtle pressure to constitute unlawful polling. Beverly California Corp., 326 NLRB 232 (1998), enf’d. in relevant part, 227 F. 3d 817 (7th Cir. 2000); ITT Automotive, 324 NLRB 609, 623 (1997), enf’d. in relevant part, 188 F.3d 375 (6th Cir. 1999) ; A.O. Smith Automotive Product Co., 315 NLRB 994 (1994). I therefore find that on November 29, the employer, by Judy Grant, engaged in unlawful polling of employees in violation of Section 8(a)(1) of the National Labor Relations Act. By this conduct the employer also coerced employees in violation of paragraph 3A of the election principles agreement.
- Mandatory nature of the November 29 meeting
The second issue presented by the November 29 meeting is whether employees’ attendance at the union portion of the meeting was voluntary or mandatory. As discussed above, the employer compelled employees to attend the first, work-related portion of the meeting and then unlawfully coerced them into remaining for the second, anti-union portion of the meeting. I therefore find employee attendance at the entire meeting was mandatory.
Paragraph 3B of the election principles agreement provides that hospital supervisors, managers, and agents shall not initiate conversations with formal or informal groups regarding the subject of unionization of eligible voters at mandatory meetings. By conducting the November 29 meeting the employer, by Judy Grant, violated this provision of the agreement.
- November 29 meeting held on work time
The purpose of the second part of the meeting on November 29 was to persuade employees to vote against the union. As such, it constituted solicitation. Washington Fruit and Produce Co., 343 NLRB No. 125 (2004). Since 1995, the employer has maintained a valid no-solicitation/no-distribution rule which prohibits all solicitation during work time. I have previously issued two rulings wherein I concluded that the employer is bound by its own rule. Notwithstanding those decisions, the employer solicited employees at the November 29 meeting in contravention of those rulings.
- Unlawful and objectionable comments made by Judy Grant
The credible testimony of Robinson establishes that on November 29, manager Judy Grant represented to employees that starting in 2007, District 1199’s dues would be charged as a percentage of gross pay. This statement was not only factually incorrect, but was made at a time when the employer knew it was incorrect. On November 20, nine days before Grant made this statement, the employer was notified in writing that effective January 1, 2007, District 1199’s dues would continue to be based on hourly-wage rates. Grant’s statement therefore constituted a factual misrepresentation in violation of paragraph 3A of the election principles agreement.
The credible testimony of Robinson further establishes that Grant threatened the PCAs in the resource support unit with loss of their $1.75 hourly wage differential if the union were to be selected by employees as their collective bargaining representative. This statement constituted an unlawful threat of loss of wages in violation of Section 8(a)(1) of the Act and a violation of Section 3A of the election principles agreement.
Grant threatened employees with loss of the opportunity to work overtime by stating if the union came in she would have to alter the way she assigned overtime from a voluntary basis to a seniority basis, thereby eliminating junior employees ability to earn overtime pay. This statement constituted an unlawful threat of loss of benefits in violation of Section 8(a)(1) of the Act and a violation of Section 3A of the election principles agreement.
Grant told employees if the union came in they would no longer be able to request a day off for a doctor’s appointment or personal business without a union representative present, thereby resulting in the loss of their privacy. This statement has no basis in law or in fact and therefore constituted an unlawful threat of more onerous working conditions in violation of Section 8(a)(1) of the Act and a violation of Section 3A of the election principles agreement.
Finally, Grant stated that employees at a local nursing home lost their jobs because they were members of the union. The testimony of David Pickus establishes that this statement was not true and that none of the unionized employees at Arden House lost their jobs. Grant’s statement therefore constituted an unlawful threat of loss of jobs in violation of Section 8(a)(1) of the Act and a violation of Section 3A of the election principles agreement.
Interim Remedy
The evidence in this case establishes the employer has engaged in serious violations of federal law, the election principles agreement, and prior arbitration awards. Grant testified that in the past two weeks she has conducted meetings similar to the one she conducted on November 29 with all of the 165 employees under her supervision, and that many of these employees attended more than one such meeting. Grant’s conduct alone therefore impacted almost 10 percent of the eligible voting unit. Moreover, as a result of a series of discussions with the parties, as well as Dowling’s testimony, it appears the employer has given permission to over 200 managers and supervisors to conduct mandatory meetings on work time to discuss the union with employees. It is not known at this time precisely how many of these meeting have been held or what was said at these meetings.
The election is scheduled to be conducted on December 20 and 21 by Region 34 of the National Labor Relations Board and the union has requested my permission to file unfair labor practice charges with the Board which may serve as a basis to block the conduct of the election. The employer opposes this request on the ground that by entering into the election principles agreement, both parties waived their rights to seek redress before the Board and that all remedial authority is vested with the arbitrator.
Given existing time restraints, it is not possible for me to fully remedy the impact of the violations established by the evidence in this case prior to the election. Nor am I able to fairly and soberly adjudicate the issues raised by the numerous claims submitted to arbitration by both the employer and the union in the last three days. As a private neutral arbitrator, I do not have the authority to postpone the election. Nor am I able to direct or even to suggest to the National Labor Relations Board that the election be postponed since that is a matter solely in the Board’s purview.
Of paramount concern to me is the employees’ right to exercise their right to vote in an atmosphere free from interference, restraint, or coercion. It is true that by entering into the election principles agreement the union and employer contractually waived their own rights to seek redress before the Board. They did not, however, waive the right of employees to a free and fair election and that right may be in jeopardy.
I therefore grant the union permission to depart from the terms of the election principles agreement and to seek a postponement of the election from the Board by whatever means lawful and appropriate.
Dated: December 13, 2006
Chappaqua, New York
______________________________
Margaret M. Kern
Arbitrator
Appendix A
Exhibits
Joint Exhibit 1 Letter and fax cover sheet dated December 6 from John M Creane invoking arbitration
Joint Exhibit 2 Letter dated December 1 from John M. Creane to Alvin R. Johnson
Joint Exhibit 3 Letter dated December 5 from Alvin R. Johnson to John M. Creane
Employer Exhibit 1 SEIU Constitution and Bylaws
Employer Exhibit 2 Form LM-2 Labor Organization Annual Report
Employer Exhibit 3 Post-hearing position statement
Union Exhibit 1 November 20 letter
Union Exhibit 2 Affiliation Agreement between District 1199 and SEIU
All dates are in 2006 unless otherwise indicated.
The employer filed a position statement on December 11. The union did not file a position statement.
Grant supervises the following employees all of whom are eligible to vote in the election: 54 PCAs in the resource support unit, 13 business associates, 24 constant companions, and 74 patient transporters.
See decision in Index No. 047.
See decisions in Index No. 014 dated October 15 and Index No. 042 dated November 19.
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