Case Study 6-3. The Influenza Work
Rule
Mercy Hospital is an acute care facility employing nearly 5,000 employees, including
602 nurses; the nurses are represented by the Regional Nurses Association (RNA).
The Hospital and RNA have a CBA which was implemented two years ago and
expires next year. The current contract calls for a joint labor-management committee
to meet weekly for two hours on paid company time to discuss work and issues
related to contract implementation.
Last May, Mercy managers brought before the labor–management committee an
announcement. “We are amending our ‘Fitness for Duty policy to require all nurses
to be immunized against the flu.” The union objected, noting that some nurses were
allergic to the preservative used in the flu vaccine and that a few objected to the flu
vaccine on other grounds (doubts about its effectiveness, objections based on how it
was developed, religious objections). The proposal was subject to discussion for six
weeks. Subsequently, managers brought a revised policy last July. The Hospital
informed the Union that it was considering requiring nurses to take one of three
steps:
•
(a)
be immunized against the flu,
•
(b)
wear a protective face-mask, or
•
(c)
take antiviral medication during flu season.
Managers argued that any of these three steps would protect patients, many of
whom were elderly, other employees, and visitors to the hospital from contracting
influenza. During the course of the next several weeks, Mercy Hospital and Union
officials discussed the revised proposal a few times and even exchanged
correspondence over this matter. However, by late October, it was obvious that the
RNA and Mercy members of the labor–management committee did not agree on the
proposed flu policy.
On November 1, the Hospital declared discussion to be at an impasse and that
managers would immediately implement the revised flu-prevention policy requiring
non-immunized nurses to either wear a face-mask or take antiviral medication. The
Hospital’s attorney indicated the organization’s intention to handle any
noncompliance with the policy through the “standard process,” which might include
progressive discipline, ultimately resulting in employment termination for repeat
offenders. The union immediately filed charges, alleging that Mercy Hospital had
violated the LMRA.
Union position
The union alleges that Mercy Hospital has
•
(a)
prematurely determined that there is an impasse in bargaining,
subsequently unilaterally changing working conditions for nurses, and
•
(b)
refused to submit the matter to an independent arbitrator under the
existing contract’s grievance-arbitration provision.
Elaborating upon each of these positions, Hospital management has a duty under
the LMRA to bargain over this matter, as it constitutes a “working condition” in the
form of a work rule and numerous NLRB precedent cases(e.g., Praxair, Inc., 317
NLRB 435, 436 1995) have established that work rules where employees may be
disciplined are mandatory subjects of bargaining. Management representatives did
not actually engage in bargaining over this matter; they merely described their
proposed policy to the labor–management committee and answered a few union
questions about how the policy would be implemented in specific work situations.
Their answers were confusing, evasive, and misleading. We were led to believe, for
example, that the policy would be implemented in the following year; suddenly, the
Hospital revised the timeline for implementation without sufficient notice to the Union.
When we asked, we got contradictory answers regarding which types of nurses
would be covered by the policy. We also requested for e-mail messages or other
records from bargaining-unit employees concerning the policy in order to gauge
employee reactions to the policy. An employer must provide a union with accurate
and relevant information for collective bargaining purposes (see NLRB v. Truitt Mfg.
Co., 351 U.S. 149, 153 [38 LRRM 2042], 1956).
It is true that managers revised the policy on the basis of union objections, but there
was no bargaining and no “meeting of the minds” resulting in an agreement on a new
policy. Rather, management presented its second version of the policy as a fait
accompli, and unilaterally
•
(1)
declared an impasse and
•
(2)
implemented its policy.
This “short-circuits” the bargaining process. Management’s actions violate Section
8(a)(5) of the LMRA, which reads, “It shall be an unfair labor practice for an employer
… to refuse to bargain collectively with the representatives of his employees The
labor–management committee is responsible for implementing the current collective
bargaining agreement (CBA); bargaining over new provisions must be handled by
negotiators designated by the Union and the Hospital. Thus, we maintain that no real
“bargaining” occurred and to declare a bargaining impasse is erroneous. Further, the
Hospital did not provide the Union with relevant information that we requested about
the proposal and Hospital managers provided misleading and evasive information to
the labor–management committee regarding when it would implement a new fluprevention policy.
If the policy is viewed as a matter to be decided under the current contract, then it
must be the subject to grievance arbitration. When the Union suggested taking the
case to grievance arbitration, management objected, arguing that an arbitrator did
not have jurisdiction to decide the matter based on the “Managerial Rights” and
“Zipper” clauses of the contract. While the union did agree to a “Managerial Rights”
clause (giving managers authority over certain administrative matters) the new fluprevention policy does not fall within the parameters of the items listed in that clause
in the current contract. Similarly, a “Zipper” clause states that an arbitrator is
supposed to interpret what is written in the contract, and to ignore “past practice”
when deciding cases. Yet the Hospital attempts to use past practice by referring to a
different rule—the Mercy Hospital Infection Prevention Policy—that existed prior to
the current contract. One cannot claim that past practice justifies a policy and
simultaneously claim that the Zipper Clause of the contract prevents the examination
of past practice! Hospital managers are in error when they try to use contradictory
logic to prevent an arbitrator from reviewing the new policy. An arbitrator clearly has
authority to evaluate these new working conditions against the terms of the CBA. In
summary, the Hospital cannot “have it both ways” declaring that it is not subject to
arbitration but then not bargaining about the matter either.
Finally, the Hospital claims it must implement this policy to conform to Centers for
Disease Control (CDC) guidelines. However, CDC guidelines only require health
care workers to wear a facemask when they are “within three feet” of the face of
someone who has symptoms of a respiratory infection. Any additional measures are
discretionary. These could adversely affect employees working conditions and,
legally, should fall within the scope of collective bargaining. However, here at Mercy
Hospital, one registered nurse in a critical care unit testified that, after enacting this
policy, the Hospital required her to wear a facemask at all times except when she
was either in the rest room, or the employee lunchroom adjacent to the Hospital
cafeteria. This is clearly an excessive abuse of managerial authority. Management
has not produced even one example of another hospital with such a draconian
policy. Therefore, the argument that this policy is required by law is without merit and
should be rejected.
Hospital position
The Hospital defends the new flu-prevention policy based on numerous legal
principles. First, when the Union accepted the Managerial Rights clause (below) the
Union waived its right to demand that the Hospital either bargain or arbitrate
decisions that fall within the scope of that clause (see Provena St. Josepha Medical
Center, 350 NLRB 808, 2007). The new flu-prevention policy falls within our
Hospital’s right to set a “standard of performance,” “implement improved operational
methods and procedures,” and “promulgate rules, regulations and personnel
policies,” under the Managerial Rights provision of the CBA. The waiver is clear and
unmistakable. The “Zipper” clause also ensures that this is a managerial prerogative
because arbitrators cannot grasp at any loosely related precedent cases to
undermine our authority in this matter.
While the Managerial Rights clause does not specifically mention facemasks, it does
mention “direct the nurses.” Procedures to “direct the nurses” at the time that the
contract was ratified (prior to the new flu-prevention policy) included a rule
unilaterally developed by Hospital administrators requiring facemasks and eye
protection, “if there is close contact with the patient such that contact with sprayed
blood, secretions, drainage, or excretions is anticipated. [Mercy Hospital Infection
Prevention Policy]” The Union accepted Hospital authority to devise that rule.
Therefore, when combined with the Managerial Rights clause, it is obvious that this
prior acceptance of Hospital rulemaking authority means that the Union has waived
any right to demand that the Hospital negotiate or arbitrate any similar type of
facemask “personnel policy” that “sets a standard of performance” and “directs the
nurses.”
Second, federal law requires the Hospital to develop effective policies to control
infection and communicable diseases, including influenza. As the Union admits,
hospitals have discretion as to what policies they develop to best implement CDC
requirements; we believe that we have developed a reasonable policy that minimizes
both patient and employee exposure to the flu.
Third, the care and protection of patients is at the core of what a hospital does. The
prevention of influenza falls within a Hospital’s “core purpose” and is, therefore,
exempt from mandatory bargaining (see Peerless Publications, 283 NLRB 334,
1987). Devising policies to prevent the spread of diseases among patients and
visitors represents a fundamental business decision. In First National Maintenance v.
NLRB, 452 NLRB 666 (1981), the U.S. Supreme Court ruled that managers do not
necessarily have to bargain over fundamental business decisions. This policy
identifies steps that health care workers must take to stop the spread of the flu
among vulnerable populations and they are not negotiable simply to satisfy the
comfort of certain nurses who refuse to be vaccinated. Under these circumstances
an employer does not have a duty to bargain with its labor union over this type of
fundamental business decision.
Finally, while not required to either bargain or arbitrate the new policy, management
did, in effect, voluntarily discuss in good faith the new policy with the Union via the
labor–management committee. Under the LMRA, an employer must notify the
employees collective bargaining representative and afford that representative an
opportunity to discuss a proposed change in working conditions prior to its
implementation (see NLRB v. Katz, 369 U.S. 736, 1962). We did this, even though
the union had waived its right to bargain, and we modified the initial policy based on
Union objections. By contrast, the Union showed no flexibility in its position and now
even denies that the labor–management committee was a proper forum for such
discussion. If anyone is guilty of bargaining in bad faith, it is the Union. We reached
an impasse over this matter. Given that we were within our rights based on the other
three reasons, described above, we chose to implement our “last and final offer.” As
for the charge that we were evasive, the union information request was irrelevant
(they can easily poll their own members to gauge their sentiment) and excessive
(requiring an examination of all correspondence, phone message logs, and e-mails
from all nurses to see which mentioned the flu policy). Management is not legally
obligated to comply with overly burdensome or irrelevant information
requests (Ethicon and Local 630, SEIU, Case 22-CA-089085, 360 NLRB 104, 2014).
Yes, the date for implementing the new policy was moved. The flu doesn’t wait for
labor–management negotiation procedures and when the current year’s flu season
appeared to be more severe than anticipated, we revised the timetable to implement
it this year rather than wait a full year. We are not legally liable because a Union
officer is offended that we didn’t get his permission prior to doing our duty as a health
care institution.
Relevant Contract Clause: “Managerial Rights”
The Union recognizes the right of the Hospital to operate and manage the
Hospital, including but not limited to the right to require standards of
performance and … to direct the nurses … to determine the materials and
equipment to be used; to implement improved operational methods and
procedures … to discipline, demote or discharge nurses for just cause …
and to promulgate rules, regulations and personnel policies….
Questions
1. Analyze the arguments over whether the two parties “bargained” Did
management bargain in good faith with the union over the policy? Did they
“bargain to impasse?” If so, does that give management the right to
unilaterally implement its “last offer?”
2. Was management required to develop this new policy by the CDC? Did that
trump labor-management relations considerations? Explain your reasoning.
3. Using a database (e.g., Bloomberg BNA’s Labor & Employment Law
Resource Center), look at the Peerless and First National Maintenance cases.
Evaluate management’s argument that the flu-prevention policy is a “core
business” decision in light of those case decisions.
4. Was management required to take this case to grievance arbitration? Explain
your reasoning, considering the other precedent cases cited
6-2. Classification of a Bargaining
Subject
The company and union have had a bargaining relationship for more than 20 years.
On July 11, bargaining unit member Allan Engle was performing his assigned work
duties of cleaning the bathroom on the second floor of the company’s administrative
building when he glanced up and observed a camera approximately 6 to 8 feet away
located in an air vent and pointed directly at him. Engle reported his discovery to
three other bargaining unit members, including union steward Luther Hall, who went
to the second-floor bathroom in question and confirmed that the hidden camera was
there. The following day the local union president was notified, but when she went to
investigate, the hidden camera had been removed.
On July 15, local union president Wanda Jackson was asked to meet with the
company’s HR manager Susan Albright. Albright asked Jackson if she had heard
about the camera that was discovered in the sanitation department’s restroom.
Albright went on to say that the camera had been installed by the company because
of a reported theft problem in that area, and the company’s legal counsel had
advised her that it was lawful as long as the company had a legitimate business
reason for doing so. Albright stated that once the camera had been discovered and
union members appeared irate over the issue, the camera was immediately removed
by management.
Local union president Jackson believed the company could have accomplished its
theft investigation through less intrusive means, and the union did not approve of
management’s invasion of employees’ privacy. The union sent a letter to the
company, dated August 1, indicating that an internal investigation by union members
had also uncovered hidden cameras being used in the employees physical fitness
room. On August 16, Jackson sent a hand-delivered letter to HR manager Albright
demanding that the company bargain over the subject of video camera use in the
workplace. The company refused to bargain over the subject, whereupon the union
filed an unfair labor practice charge, alleging that the company’s action violated
Section 8 (a)(5) and (1) of the LMRA, as amended.
Positions of the Parties
The union argues that the use of surveillance cameras in the workplace for providing
evidence of work-rule violations by employees, for which they could be subject to
discipline or discharge, is clearly an issue that is germane to the working
environment and job security interests of union members. Therefore, the union
believes management has a legal duty to bargain in good faith, upon request, over
issues such as the number and location of video cameras within the workplace.
Other issues over which bargaining unit members might have an interest in
bargaining include whether employees will be given prior notice that their conduct
may be subject to filming; who will have access to the video recordings made; for
what purposes the video recordings may be used; and the circumstances under
which the cameras can be required to be removed.
The company essentially makes two arguments. First, the company believes it has
an absolute right to engage in actions (like using cameras) to protect the legitimate
business-related interests of the ownership. The company noted that it had for many
years used 17 video cameras located both inside and outside company buildings to
observe activity for protecting company property from theft or damage and to
discourage other work-rule violations (e.g., drug use, sleeping on the job). These 17
cameras were in plain sight, and their existence had been known to the union’s
membership for many years without any prior objection from the union. In recent
years, 11 additional hidden video cameras had been installed inside the company to
observe specific areas where employee misconduct was suspected. To require
management to bargain in advance over the use or placement of such surveillance
equipment would significantly reduce the effectiveness of this method of monitoring
employee conduct on the employer’s premises.
Second, management argues that even if the Board were to find that a duty to
bargain existed, based on the circumstances in this case, the union waived its right
to bargain over the subject of surveillance cameras. The company points to the
length of time it has used video cameras without any objection by the union as
evidence that the union has acquiesced in this practice and essentially
acknowledged management’s right to use surveillance cameras for legitimate
business reasons. The company acknowledges that the union has a right to file a
contractual grievance over any alleged misuse or abuse of surveillance methods
leading to a lack of just cause for disciplinary or discharge action against a
bargaining unit member. However, the right to grieve a management discipline or
discharge decision is not equivalent to a right to require management to bargain, in
advance, over the right to use camera surveillance as a legitimate investigatory
technique.
Questions
1. What is a mandatory subject of bargaining?
2. Can a union waive its right to bargain over a mandatory subject of bargaining?
3. Was management’s refusal to bargain over the subject of surveillance camera
usage in the workplace a violation of the duty to bargain in good faith under
the LMRA, as amended? If so, what should be the appropriate remedy?
Discuss the merits of the parties’ respective positions in this case.
5-3. Are the Field Supervisors
“Supervisors” Under the National
Labor Relations Act (NLRA)?
The election was conducted pursuant to a Stipulated Election Agreement. The tally
of ballots shows 85 ballots cast for, and 80 ballots cast against, the Union, with 2
challenged ballots, a number of insufficient to affect the outcome of the election.
The Employer provides digital television services to residential and commercial
customers. At its Rancho, AZ facility, the Employer employs approximately 215
employees in the following classifications: field technicians, warehouse employees,
and dispatchers. The vast majority of these employees are field technicians, who
install or repair digital equipment at customers’ locations. In addition, the Employer
employs a site manager, 3 operations managers, and 22 field supervisors. Of the 22
field supervisors, 13 are designed “field supervisors with a team” [hereinafter
referred to as “field supervisors”], and 9 are designated “field supervisors without a
team.” Each field supervisor oversees a team of approximately 10 to 15 field
technicians. In contrast, “field supervisors without a team do not oversee anyone;
rather, they primarily perform installation and repair work on complex jobs or jobs for
important customers.
Field supervisors respond to their team members’ telephone calls seeking answers
to technical questions, requesting additional equipment, or reporting problems with
particular job assignments (e.g., a customer is unavailable or a site is inaccessible).
Field supervisors monitor the productivity of the field technicians on their team,
examine their work, and inspect their vehicles. Field supervisors have the authority
to give verbal warnings to technicians for performance issues or for tardiness, such
as being late to a team meeting. Such verbal counselings are documented by field
supervisors in “manager notes,” which are not reviewed by management and not
retained in employees’ personnel files.
If a field supervisor determines that a technician’s performance or infraction warrants
more than a verbal counseling, he has the authority to initiate the disciplinary
process associated with an employee consultation form (ECF). Field supervisors do
not have the authority to prepare and issue ECFs directly to technicians; rather,
ECFs are subject to management review. More specifically after a field supervisor
prepares a draft ECF, the ECF is reviewed, first, by the operations manager to whom
the field supervisor reports; next, by the site manager, and, finally, by the human
resources department. At each stage of review, the reviewer may alter the language
of the ECF, change the proposed level of discipline, or decide that the ECF should
not be issued. Following that review, the field supervisor meets with the technician to
present and explain the ECF. The field supervisor thereafter affords the technician
the opportunity to set forth his version of events, or add other comments, on the ECF
form. Finally, the field supervisor asks the technician to sign the ECF form and then
signs it himself, after which the ECF is placed in the employee’s personnel file.
Section 2(11) of the Act defines a “supervisor” as Any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or responsibility to direct
them, or to adjust their grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
Questions
1. If the NLRB decides that the field supervisors are “supervisors” under the
National Labor Relations Act, what does the NLRB do about the
representation election?
2. Are the field supervisors “supervisors” under the NLRA?
3. How should the NLRB rule on the field supervisors?
4. How should the NLRB rule in the case of the election? Why?
Purchase answer to see full
attachment