Was hospital guilty of 'unfair labor practice'?

HEALTHCARE EMPLOYEES' UNION LOCAL399 (UNION) FILED AN UNFAIR LABOR CHARGE AGAINST ST. VINCENT MEDICAL CENTER ALLEGING THAT IT SUBCONTRACTED THE WORK OF ITS RESPIRATORY DEPARTMENT OUT ON THE EVE OF A UNION ELECTION.

On January 4, 2000, the Union filed a petition for an election with the

Board for the bargaining unit of one hundred technical staff employees. The Union maintained that the hospital did so in violation of the National Labor Relations Act (NLRA). After a hearing, an Administrative Law Judge (ALJ), who heard the case on behalf of the NLRB, dismissed the Union's complaint ruling that the Union failed to carry its burden of persuasion that anti-union animus was a motivating factor in the hospital's subcontracting decision. In addition, the ALJ ruled that even if the Union had carried its burden of persuasion, the hospital. demonstrated that it would have subcontracted the work out in the absence of the Union's organizing activity and the impending election. The hospital maintained that it outsourced the work of its Respiratory Care Department in February 2000 because it was unable to find and train suitable managers. The hospital's difficulty with management of the Respiratory Care (RC) Department had existed a long time before the work of that department was actually contracted out. In fact, while the RC Department's problems became more evident in the three years before the outsourcing decision, the hospital had comparable problems with its RC Department for nearly thirteen years. Despite the replacement of the RC Department's manager in early 1999, the department's productivity standards continued to remain lower than those of other departments. Several RC employees maintained that during 1999, they encountered problems that hindered them from accomplishing their assigned tasks. During that time, they complained regularly to management about a lack of proper billing codes, lack of proper respiratory equipment, and general staffing problems. The Union began to campaign to organize the hospital's technical staff in July 1999, when it assigned between three and four full-time organizers to the hospital. Union organizers, easily identified by their distinctive T-shirts, spoke openly to employees at the hospital and passed out pro-union fliers several times a week. In early July, the Union picketed in front of the hospital. Hospital authorities merely watched and observed. After the ALJ rendered the decision against the Union, the Union appealed.

THE UNITED STATES COURT OF APPEALS, NINTH CIRCUIT, REVERSED THE JUDGMENT OF THE NLRB.

The court recognized that ordinarily in any case in which reasonable minds might differ as to whether the timing of a subcontracting decision and increased union activity is not deliberate (but genuinely motivated), the decision of the fact finder should not be overturned. However, the court did not agree that the decision of the ALJ, who was the fact finder in this case fell into the category of cases in which the tact finder's decision should not be overruled. Accordingly, the court granted the Union's petition for review, reversed the ALL and remanded the case back to the NLRB for further proceedings.

A COURT OF APPEALS CAN OVERTURN A BOARD'S DECISION ONLY IF THE BOARD'S FINDINGS OF FACT ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE OR IF THE BOARD HAS INCORRECTLY APPLIED THE LAW.

The court concluded that the ALJ's findings were not sufficiently supported by substantial evidence so as to prohibit his decision from being overturned. After reviewing the record, the court concluded that the hospital's witnesses did not present a consistent or plausible explanation for why it was necessary to subcontract out the work of the entire RC Department in order to obtain better managers. The ALJ found that the hospital's business justification "seemed to lack plausibility," and noted the "seeming lack of a clear rational for the way in which the subcontracting decision was carried out." He further found the justification was "almost too much to believe and that "on its surface it appeared to be a fabrication, and not a very good one at that." These findings of the ALJ reinforced the inference that the true motive for the decision to subcontract was anti-union animus. Editor's Note: In view of the observations of the ALd which the court quoted in its decision, it is almost inconceivable that the ALJ decided the case as he did. It is strange indeed, that by virtue of the ALJ's own fact finding, the hospital embarked on its subcontracting expedition within three weeks after receiving notice that a Union election was scheduled. It is almost all the more inconceivable when we realize that the ALJ new that the hospital had problems with the RC Department for approximately ten years! How did the ALJ reach the decision he did? Healthcare Employees' Union, Local 399 v. National Labor Relations Board, No. 03-72029 (9th Cir. 09/11/2006)-CA