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Health Care Law
Alert August 11, 2009
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CLIENT ALERT:
Concerted
Refusal to Work Overtime Can Be Unfair Labor Practice
A recent 9th
Circuit United States Court of Appeals opinion held in favor of a
hospital when a union neglected to provide 10 days' notice before
beginning any "concerted refusal to work." Section
8(g) of the National Labor Relations Act ("NLRA"), 29
U.S.C. § 158(g), specifically applies to healthcare institutions and
requires that a union provide 10 days' notice before it engages in
any organized refusal to work.
In SEIU, United Healthcare Workers-West v NLRB,
2009 U.S. App. LEXIS 17100 (9th Cir. Aug. 3, 2009), the Service
Employees International Union, United Healthcare Workers-West (the
"Union") only provided California Pacific Medical Center
(the "Hospital") 4 days' notice before Union members
collectively declined to work overtime. The refusal to work
overtime occurred following the Union's efforts to obtain 100 Union
member signatures on a petition protesting the Hospital management's
proposed subcontract for laundry services. Essentially, the
petition was a signed commitment by Union members in the
Environmental Services Department to refuse any overtime work for one
week.
In this
case, the Union represented a bargaining unit of housekeepers and
linen aides at the Hospital's Davies and Pacific campuses. In
accordance with the terms of the Collective Bargaining Agreement
("CBA"), the parties agreed that the Hospital was not
permitted to assign mandatory overtime, except during
emergencies. Generally, the Hospital required several hours of
weekly overtime to meet the staffing and operational needs of both
campuses. Historically, the Hospital relied on volunteers and
was consistently able to fill the overtime shifts with
volunteers. In May 2006, the Hospital proposed to change its
method for processing linens by subcontracting the service to an
outside vendor. The Union asserted such subcontract violated
the terms of the CBA. As a result, the Union organized a
refusal to work by obtaining written commitments from its members to
a one week refusal to accept any extra shifts or overtime work.
The petition
with Union member signatures was delivered to Hospital management at
the Davies campus on June 1, 2006 and to management of the Pacific
campuses on June 2, 2006. This was the first notice the
Hospital received regarding a possible cessation of work.
Beginning Monday, June 5, 4 days following receipt of the Union's
petition, the manager of the Davies campus attempted to fill 16 hours
of overtime, but could not find any volunteers. Future attempts
during the week yielded the same result. The Pacific campus was
also unable to find any volunteers to work overtime during the week
of June 5.
Following this
refusal to voluntarily work overtime, the Hospital filed an unfair
labor practice charge on June 13, 2006 claiming that the Union
violated Section 8(g) by failing to provide timely notice of its
intention to engage in a concerted refusal to work. The
Administrative Law Judge decided in favor of the Hospital and the
National Labor Relations Board (the "Board") issued an
order against the Union to cease and desist from any concerted
refusals to work overtime. This appeal followed.
Section 8(g) of
the NLRA specifically pertains to health care institutions and
generally requires that labor organizations provide not less than 10
days' notice prior to engaging in any strike, picketing, or other
converted refusal to work at any health care institution. The
Union argued that the collective refusal to work overtime was
permitted under the terms of the CBA because the Hospital cannot
force an individual to work overtime. The Court held that the
Union members did not act on an individual basis and that "their
action was 'concerted' because it was orchestrated by the
Union." The Court also stated that although an individual
member's decision to refuse overtime does not require notice under
Section 8(g), notice is required when a refusal to work is the direct
result of union action against a healthcare institution.
Therefore, the Court upheld the Board's decision that the Union's
failure to provide 10 days' notice violated Section 8(g).
To review
this opinion, please see: SEIU,
United Healthcare Workers-West v NLRB, 2009 U.S. App.
LEXIS 17100 (9th Cir. Aug. 3, 2009).
Clark
Hill's team is available to assist your organization with any
questions or concerns regarding union activity, collective bargaining
agreements, arbitration, NLRB hearings and all other labor related
matters.
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To find out more
about Clark Hill and our Health Care Practice Group, visit clarkhill.com
or call 800.949.3124
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