12/19/2024: The Never-Ending Coercive Rules Case
First application of the newly reinstated "clear and unmistakable" waiver standard.
Grill Concepts Services, Inc. d/b/a The Daily Grill, 374 NLRB No. 15, 31-CA-126475 (Published Board Decision)
In 2016, the NLRB ruled that a long list of work rules maintained by the employer violated Section 8(a)(1) under the Lutheran Heritage test. By the time the case made its way to the D.C. Circuit on appeal, the Lutheran Heritage test had been replaced by the Boeing test, so the D.C. Circuit remanded the case back to the NLRB to apply the new Boeing test. The NLRB would have applied that test in this decision except that now the Boeing test has been replaced by the Stericycle test. So the NLRB remanded the case back to an Administrative Law Judge to apply the Stericycle test.
This is a fascinating case from a procedural perspective. The law governing the dispute keeps changing faster than the NLRB and circuit courts can actually process the case, resulting in the case being perpetually bounced around in order to apply new legal standards. It is conceivable that, by the time the ALJ is able to apply the Stericycle test, the Trump Board will have replaced that with some other test, creating yet another cycle of appeals and remands to apply the new test.
Significant Cases Cited
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004): Established the work rules that would be reasonably interpreted as restricting protected activity violate the NLRA
The Boeing Co., 365 NLRB 1494 (2017): Overruled Lutheran Heritage, creating a balancing test for assessing the legality of work rules based on legitimate business justifications and potential to interfere with employee rights.
Stericycle, Inc., 372 NLRB No. 113 (2023): Overruled Boeing, and reinstated a modified version of the Lutheran Heritage test.
Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018): Upheld employer-employee agreements with class action waivers, which the Board distinguished from the arbitration issues in this case.
Hospital Español Auxilio Mutuo de Puerto Rico, Inc., 374 NLRB No. 6, 12-CA-285457 (Published Board Decision)
The NLRB ruled on a dispute involving Hospital Español Auxilio Mutuo de Puerto Rico. The case centered on two main issues: the hospital's implementation of a mandatory overtime system and its response to a union information request.
The hospital had historically relied on volunteers to cover unfilled nursing shifts. In September 2021, it introduced a "star system" where nurses marked with stars on the schedule would be required to work mandatory overtime if no volunteers could be found. The hospital implemented this change without notifying or bargaining with the union.
A few months later, in June 2022, the hospital fired nurse Luz Soto-Burgos. The union requested information about her termination, but the hospital took four weeks to respond and only did so after the union filed an unfair labor practice charge.
The NLRB determined that the hospital broke the law in both situations. On the overtime issue, the Board found that the hospital's management rights clause didn't clearly give it the right to make this change without bargaining. The Board applied its recently restored "clear and unmistakable waiver" standard from the Endurance Environmental case.
On the information request, the Board found that the hospital's four-week delay was unreasonable. The Board rejected the hospital's explanations about HIPAA concerns and staffing issues, noting that most of the requested documents were simple personnel file materials.
As a result, the Board ordered the hospital to cancel the star system and return to bargaining with the union before making such changes. This decision overturned parts of the administrative law judge's ruling, particularly regarding the information request delay, which the judge had found acceptable.
Significant Cases Cited
Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Reinstated the clear and unmistakable waiver standard, requiring explicit contract language for employer unilateral actions.
American Red Cross, 364 NLRB 1390 (2016): Held that management-rights clauses cannot survive contract expiration unless explicitly stated.
Chef’s Pantry, 274 NLRB 775 (1985): Overtime assignment changes are mandatory bargaining subjects.
Medstar, Inc. d/b/a Medstar Ambulance, 07-RC-351943 (Regional Election Decision)
This case involves a petition filed by the Association of EMS Professionals (AEP) to represent certain employees of Medstar Ambulance. The petitioned-for unit includes various job classifications such as critical care paramedics, paramedics, EMTs, field training officers, and others, covering approximately 690 employees. Local 876, UFCW, currently represents the employees under a collective bargaining agreement (CBA) effective from January 1, 2022, to December 31, 2027.
The key issues in this case are:
Whether AEP qualifies as a labor organization under Section 2(5) of the NLRA.
Whether the petition is barred by the existing CBA under the contract bar doctrine.
Whether Medstar qualifies as a healthcare institution under Section 2(14) of the NLRA, which would affect the contract bar timing rules.
Legal Issues and Analysis
1. Labor Organization Status under Section 2(5)
The Regional Director applied the three-part test from Vencare Ancillary Services:
Employee Participation: AEP consisted of employees actively involved in discussing workplace issues and advocating for collective bargaining.
Purpose of Dealing with the Employer: Evidence showed AEP intended to negotiate terms and conditions of employment with Medstar.
Matters of Employment: AEP’s objectives included negotiating wages, hours, and working conditions.
The Director emphasized that formalities, such as bylaws or dues, are not required for labor organization status. The decision found that AEP’s informal structure did not disqualify it from being a labor organization under the NLRA.
2. Contract Bar Doctrine
The contract bar doctrine prevents processing representation petitions during the term of a valid CBA, with exceptions. Under General Cable Corp., 139 NLRB 1123 (1962), CBAs longer than three years are treated as three-year agreements for this purpose.
If Medstar is not a healthcare institution, the open period would be October 3–November 1, 2024, making AEP’s petition untimely.
If Medstar qualifies as a healthcare institution, the open period shifts to September 3–October 2, 2024, making the petition timely.
3. Healthcare Institution Status under Section 2(14)
The Director examined whether Medstar’s ambulance services met the broad definition of healthcare institutions under Section 2(14). Relying on Syracuse Region Blood Center, 302 NLRB 72 (1991), which emphasized the substantial and regular impact of services on patient care, the Director found:
Medstar paramedics provide critical, life-saving treatments such as IV therapy, intubation, and medication administration.
These services demonstrate a substantial impact on patient care, qualifying Medstar as a healthcare institution under Section 2(14).
Conclusion
AEP qualifies as a labor organization under Section 2(5).
Medstar is a healthcare institution under Section 2(14), making AEP’s petition timely.
The CBA between Medstar and UFCW does not bar the petition.
The Regional Director directed a secret ballot election for employees to vote on whether they wish to be represented by AEP, UFCW, or neither. The election was scheduled as a traveling election across multiple Medstar locations from December 18 to December 20, 2024.
Significant Cases Cited
Vencare Ancillary Services, Inc., 334 NLRB 965 (2001): Established a three-part test to determine labor organization status based on employee participation and the organization’s purpose.
General Cable Corp., 139 NLRB 1123 (1962): Contracts exceeding three years are treated as three-year agreements for contract bar purposes.
Syracuse Region Blood Center, 302 NLRB 72 (1991): Determined that healthcare institution status depends on substantial and regular patient care impact.