Extract
Community Medical Center, (2009)
Community Medical Center and New York State Nurses Association. Cases 4CA34888, 4CA35025, and 4RC21199
May 29, 2009By Chairman Liebman and Member SchaumberDECISION, ORDER, AND DIRECTION OF SECOND ELECTION On March 14, 2008, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief; the General Counsel and the Charging Party filed answering briefs. The General Counsel also filed a limited cross-exception, and the Respondent filed a reply. On December 9, 2008, the National Labor Relations Board remanded the case to the judge for further consideration of his finding that the Respondent violated Section 8(a)(1) when it held a meeting on October 18, 2006 to announce the implementation of the shared governance concept.[1] On December 29, 2008, Judge Rosenstein issued the attached supplemental decision. The Respondent filed exceptions, a supporting brief, and a reply brief; the General Counsel filed an answering brief. The National Labor Relations Board[2] has considered the decision, the supplemental decision, and the record in light of the exceptions and briefs, and has decided to affirm the judges rulings, findings,[3] and conclusions, as modified herein, and to adopt his recommended Order as modified and set forth in full below; we further find that the election must be set aside and a new election held.We adopt the judges findings that the Respondent violated Section 8(a)(1) by directing representatives of the Union to retrieve their vehicles from its parking garage and to leave the parking garage, and promising employees improved terms and conditions of employment through a shared governance initiative in order to discourage employees from selecting the Union as their collective-bargaining representative. Based on our findings regarding these two unfair labor practices, we further adopt the judges recommendation to set aside the election results.[4] As explained below, we reverse the judges finding that the Respondent violated Section 8(a)(1) by hiring Keith Peraino,[5] a former union organizer, and assigning him to campaign against the Union without providing assurances to employees that Perainos knowledge regarding their union activities would not be used against them. i. factsThe Respondent is a 600-hundred bed, acute care hospital. The Unions first organizing campaign in 20042005 was unsuccessful. The Union commenced a second organizing campaign in March 2006.[6] Peraino began working as an organizer for the Union in 1999 and was involved in both election campaigns. Peraino regularly attended union meetings with the employee organizers, was involved in crafting the Unions campaign strategy, and had access to the names of all employees who supported the Union. Peraino was offered a position as a labor relations consultant with the Respondent in July and started work for the Respondent in August. In about mid-August, Peraino informed Registered Nurse (RN) Helen Hucker, an employee union organizer, that while she might see him at the hospital, he would not be working on the election campaign. Peraino, on August 24, left a similar message for RN Linda Gural, an employee union organizer, which she recorded and played at an organizing committee meeting held in September. The other employee nurse organizers at the meeting were upset when they heard the telephone message as, by then, they had seen Peraino in the hospital actively working on the Respondent s antiunion campaign. Most of the staff nurses learned, after the election petition was filed on August 30, that Peraino was now working on the Respondents antiunion campaign. ii. discussionContrary to the judge, we conclude that extant Board law does not establish that the Respondent had an affirmative duty to provide assurances to its employees regarding the hiring of Peraino, and that its failure to do so violated Section 8(a)(1). The gravamen of the complaint is neither that it was unlawful for the Respondent to hire Peraino (or for Peraino to accept such employment), nor that it was unlawful for the Respondent to assign him to campaign against the Union. Rather, the thrust of the complaint is that the Respondent failed to comply with a duty to assure employees that Perainos knowledge would not be used to interfere with their exercise of their Section 7 rights. The judge embraced this novel theory, reasoning that Peraino, through his union employment, acquired information about the campaign that could be used to influence the election outcome. In the judges opinion, an employer may not take advant...See the full content of this document
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