Firing Sleeping Worker Before Union Election Violated NLRA

 

By Roger S. Achille May 15, 2019
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An employer violated the National Labor Relations Act (NLRA) when it fired a worker for sleeping during the night shift two days before a union election without considering the merits of the termination. Instead, the employer was trying to strengthen its grounds for firing other employees who were leading a union organization campaign but also sleeping during the same shift, a federal appeals court decided.

Novato Health Care Center operated a skilled-nursing facility in California that cared for about 170 patients. In September 2015, the National Union of Healthcare Workers filed a petition with the National Labor Relations Board (NLRB) to represent a unit of Novato employees.

On Oct. 6, 2019, four employees, who were among those leading the organizing effort, worked the night shift together at Station Four, one of four nursing stations at the facility. During that same shift another employee, whose union sentiments remain unknown, worked at a separate nursing station, Station One.

A supervisor testified that when she arrived at the facility she witnessed all five employees sleeping for at least 15 to 20 minutes and took a photograph of two of the sleeping employees at Station Four. The two employees whose picture was taken acknowledged sleeping but only during their 10-minute break, which the company permitted. The two other employees at Station Four denied sleeping, and the employee at Station One did not testify.

The next morning, the supervisor sent the facility administrator the photograph and informed him that the five employees had been asleep for 15 to 20 minutes. The facility administrator suspended all five employees and initiated an investigation. Novato's outside counsel provided input regarding disciplinary options. Specifically, in an e-mail to the facility administrator, the attorney recommended firing all five employees.

Although counsel recognized that the employee at Station One was "a bit of a different story" because her charge nurse appeared to have tolerated her sleeping, he still recommended her discharge. Counsel explained in his e-mail, "Giving her lesser discipline, in this situation, sends the wrong message to the NLRB or a judge looking at this. It is possible that the NLRB or judge could view her situation as being less serious than the others, but I would rather have you take that risk, than the risk that letting her remain employed somehow dilutes our arguments with the other four." Two days before the scheduled election, the facility administrator fired all five employees for sleeping on duty. The union eventually won the election.

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

The union charged Novato with committing a number of unfair labor practices, including the firing of the employees two days before the election. Concluding that anti-union sentiment was a motivating factor and finding that the supervisor's testimony was simply implausible, an NLRB administrative law judge found that the company had violated the NLRA by suspending and firing the five workers.

Novato appealed to the D.C. Circuit, disputing the NLRB's determination that it fired the Station One employee in violation of the NLRA. The company emphasized the "total lack of evidence" that she did not sleep or that she was a union supporter.

Although the Station One employee's union views were unknown, the NLRB concluded that Novato fired her along with the Station Four employees "for fear of diluting its argument against the other discriminatees" and to "cover its unlawful suspension and termination of the other four employees." The NLRB has held that an employer's discharge of neutral employees to facilitate discriminatory conduct against a targeted union-supporting employee violates the act.

The D.C. Circuit found substantial evidence to support the NLRB's conclusion that Novato fired the Station One employee to provide cover for the discriminatory conduct toward the four union supporters. The court referenced counsel's statement in the e-mail to the facility administrator that the Station One employee was "a bit of a different story." Nevertheless, the court observed, the facility administrator followed the attorney's advice. Finding no basis for reversing the NLRB's decision, the D.C. Circuit affirmed that Novato violated the NLRA by using the Station One worker as a "pawn in an unlawful design."

Novato Healthcare Center v. NLRB, D.C. Cir., No. 17-1221 (March 5, 2019).

Professional Pointer: The NLRB will set aside an election if an employer engages in objectionable conduct that may have affected the outcome. Common examples of objectionable conduct include threatening, interrogating or spying on pro-union employees, or promising benefits to workers if they reject the union.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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