Metropolitan News-Enterprise

Monday, March 20, 2006


Page 1


Ninth Circuit Rules:

Anti-Union Bias Claim Against Local Hospital Wrongly Rejected


By DAVID WATSON, Staff Writer


A union’s claim that a mid-city hospital contracted out its respiratory care services in a bid to stymie an organizing campaign was wrongly rejected by an administrative law judge, the Ninth U.S. Circuit Court of Appeals ruled Friday.

A divided panel ordered the National Labor Relations Board to reconsider the allegation by Healthcare Employees Union Local 399, an affiliate of the Service Employees International Union, that St. Vincent Medical Center’s decision to lay off its 27 respiratory care therapists and bring in an outside firm to manage the department violated provisions of the National Labor Relations Act barring employers from discriminating against employees “in regard to hire or tenure of discourage membership in any labor organization.”

Writing for himself and Senior Judge William C. Canby Jr., Judge Harry Pregerson said the administrative law judge who considered the union’s complaint should not have considered testimony by hospital administrators that the decision to turn operations of the hospital’s Respiratory Care Department over to an outside firm resolved longstanding productivity problems stemming from the difficulty it had experienced in finding qualified managers.

Evidence Irrelevant

Evidence that the decision turned out to be a good one was irrelevant to the question of what motivated it, Pregerson said, and the ALJ should not have considered it in deciding whether the hospital had overcome the “strong circumstantial evidence of antiunion animus” presented by the union.

Quoting language from the Second Circuit’s 1970 decision in NLRB v. Rubin, 424 F.2d 748, Pregerson said that the “inference of anti-union animus raised by the timing of St. Vincent’s decision to subcontract is ‘stunningly obvious.’”

He explained:

St. Vincent subcontracted out the department on February 5, 2000, less than a month after the Union filed its petition for an election with the Board, and less than two weeks before the scheduled election. The effect of St. Vincent’s decision to outsource operation of the RC department—was the disenfranchisement of twenty-five percent of the employees (ninety-five percent of whom had already expressed their desire to join the Union) who were otherwise eligible to vote in the representation election.”

The judge added:

“Courts have consistently treated an employer’s adverse employment action occurring between the filing of a petition for a representation election with the Board and the ensuing election as raising a powerful inference of anti-union animus.”

As for the management problems in the department, Pregerson noted they had existed for more than a decade.

He reasoned:

“Whether an employer’s decision was ultimately good or bad...has no relevance in such as this, where the critical issue is the employer’s motive....The ALJ therefore erred in relying on evidence of the RC department’s improved conditions to conclude that St. Vincent was not motivated by anti-union animus in its decision to subcontract out the department.”

‘Divided Accountability’

Pregerson pointed out that, although one reason cited by the hospital for not retaining the therapists as hospital employees while contracting out the task of managing the department was that doing so would have created issues of “divided accountability,” in fact the laid-off employees were rehired, not as employees of the management firm, but of a subcontractor.

“Actually,” Pregerson declared, “the RC department arrangement would have been identical had St. Vincent simply contracted out its management services....In either case, RC managers and the RC therapists would not have been employed directly by the same employer.”

Though the hospital presented evidence, which was cited by the NLRB in upholding the ALJ’s ruling, that the decision to outsource the department would have been made even in the absence of an organizing campaign, that evidence was hardly substantial, Pregerson argued.

“[W]e would need to ignore a powerful string of coincidences to conclude that St. Vincent would have implemented subcontracting, when and as it did, in the absence of union activity,” he wrote.

Senior Judge Robert R. Beezer dissented, asserting that though the majority had cited the proper standards for reviewing NLRB decisions it had not applied them.

Pregerson and Canby, he said, relied “in part upon inferences of anti-union animus drawn from two anti-union statements allegedly made by members of St. Vincent’s management.”

Those inference, however, “are not discussed by either the ALJ or NLRB in the record before us,” the dissenting jurist wrote.

While the Sixth Circuit has held that anti-union sentiments expressed by management may be considered evidence of animus, Beezer conceded, the Second and Seventh Circuits have concluded that to the extent such speech is constitutionally protected it should not be considered.

Citing 29 U.S.C. Sec. 158(c), Beezer declared:

“The use of protected speech as evidence, background or otherwise, of unlawful activity violates the clear statutory command that noncoercive expressions of views, argument, or opinion shall not be ‘evidence of an unfair labor practice.’”

As for the “coincidences” cited by the majority, Beezer wrote:

“Reasonable minds may disagree about whether the concurrent timing of the subcontracting decision and the increased union activity is sufficient evidence that anti-union animus was a substantial factor in the subcontracting decision. I do not agree that ignoring the agency’s view of the facts and evidence is an adequate basis for us to reverse the ALJ and NLRB’s decision.”

The case is Healthcare Employees Union, Local 399 v. National Labor Relations Board, 03-72029.


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