The Hartford Regional Office of the National Labor Relations Board (NLRB) issued a complaint on February 29, 2012 against a nursing home chain with homes in six Connecticut cities. This is the fourth complaint the NLRB has issued against the chain in the last two years.
The most recent complaint alleges that the nursing home chain locked out employees at one of the nursing homes in violation of federal labor law, and continually bargained in bad faith with its union. The employees at the nursing homes are part of District 1199 of the New England Health Care Employees Union. The bargaining unit consists of nursing home nurses, housekeepers, and other maintenance workers.
A prior complaint filed against this chain went to trial, and is pending a decision from the NLRB administrative law judge that presided. That complaint surfaced because the nursing home chain subcontracted the work of 48 union housekeepers for fifteen months, between February 2009 and May 2010. The workers did the same work for the subcontractor as they would have been doing for the nursing home chain during that time period, and then were rehired by the nursing home chain, but as probationary employees with significantly lower pay and no benefits. No notice to the union or bargaining took place over this unilateral change. Further, at all six homes, the nursing home chain reduced holiday and overtime pay, work hours, and part-time employees’ eligibility for benefits without notifying or bargaining with the union. Following this complaint, two other complaints involving the same chain were filed, alleging that the chain refused to allow workers to distribute union flyers and wear union stickers.
After the collective bargaining agreement expired, the union attempted bargaining with management for its successor contract for each nursing home location. The complaint filed today states that management bargained in bad faith, insisting on terms that were unreasonable, refusing to negotiate, and threatening a lock out.
The Milford, Connecticut nursing home management locked out its unionized employees in an attempt to strong-arm the union to agree to its unfair, unreasonable collective bargaining propositions. Federal labor law has long held that the employer has the right to lock out its employees in an attempt to achieve a bargaining objective. See American Ship Building Co. v. Labor Board, 380 U.S. 300 (1965). However, if an employer locks out its employees after bad faith bargaining, then the lock out is unlawful. When the lock out follows bad faith bargaining, it’s the bad faith bargaining itself that gives rise to a violation. Bad faith bargaining frustrates the protections of the National Labor Relations Act (NLRA). The NLRA §8(a)(1) makes it an unfair labor practice for the employer to interfere with, restrain or coerce employees in exercise of their §7 rights, which includes organizing, bargaining collectively, and to engage in concerted activity for the purposes of bargaining collectively.
The case is set to be heard by a judge in May of this year, if the parties fail to reach a settlement. In this case, the employer may have been quick to exercise its right to lock out, without first abiding by the law’s command to bargain collectively with its union. If the judge does find that the employer bargained in bad faith in violation of the law, then the employer’s lock out would also be unlawful. The remedy for an unlawful lockout is severe – the employer must then reinstate the locked out employees with full back pay.
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