Thursday, August 6, 2009, 2:31 PM

Principle, or Principal? It's Not Just a Spelling Distinction

Requiring employees to work overtime is not an unusual employer demand, but in situations in which employees band together to refuse overtime, the issue is not as simple. In health care, it's even more involved: Section 8(g) of the National Labor Relations Act, 29 U.S.C. Sec. 158(g), mandates that a labor organization "before engaging in any strike, picketing or other concerted refusal to work at any health care institution" must (except in initial-contract bargaining situations) give the employer and the Federal Mediation and Conciliation Service at least 10 days' notice of "the date and time that such action will commence."

Interpretation of that statutory requirement was the question presented in SEIU, United Healthcare Workers-West v. NLRB, decided in the US Court of Appeals for the Ninth Circuit on August 3 ( www.ca9.uscourts.gov/datastore/opinions/2009/08/03/07-73028.pdf). Union-represented housekeepers and linen aides employed by California Pacific Medical Center were urged by their labor organization to work no overtime, because the collective bargaining agreement between the Union and CPMC forbade the employer to require overtime except in emergencies. Although CPMC had been able to deal with workload pressures through allowing employees to volunteer for overtime work, a proposed change in handling linens provoked the Union to contend there was a violation of the agreement's provisions on subcontracting, resulting in the suggested job action.

An administrative law judge and the National Labor Relations Board agreed that the Union's conduct stepped over the line. and ordered the Union to "cease and desist" their encouragement of work stoppages in the form of overtime refusal. The Ninth Circuit, enforcing the NLRB order, found no safe harbor for the Union's conduct in the language of the collective bargaining agreement. The basis for future mischief is, however, the court's comment on an issue which the Union argued but which the evidence did not support: '[T]here would not necessarily be a concerted refusal to work in the event all employees, acting independently, were unwilling to volunteer for overtime. Here, however, the members did not act on an individual basis. Rather, their action was 'concerted' because it was orchestrated by the Union."

This situation is a narrow one. Group protests, whether or not union-inspired, may constitute "concerted protected activity" under the National Labor Relations Act, so that care must be taken by an employer in responding to such a challenge. The 10-day notice requirement was imposed as a price of allowing the organization of hospitals and other health care facilities, and even that protection does not preclude "spontaneous" job actions by employees. One final observation: The overtime issue ran for seven days, after which employees resumed working overtime. The critical period was June 5 through 11, 2006. The employer has absolutely no remedy for the lost week's overtime more than three years ago. Consequently, being right may have meaning in principle - but the employer's principal expenditures, starting with the Union's activity and consuming a three-year legal battle in which there's no possibility of recovering the fees and expenses entailed in the process, would be enough to cause most of us to lose interest.

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