New Owners of Nursing Home Can’t Discriminate Against Union

Posted April 24, 2013 in Labor and Employment by

Health care workers holding hands


The 3rd U.S. Circuit Court of Appeals on Apr. 5 ruled that the new owners of a Pennsylvania nursing home must recognize and bargain with a union that began representing employees at the home when it was owned by the county.


Not Into the Unions

Privately-owned Grane Healthcare Co. bought the nursing home from Cambria County in 2010. Employees at the home had previously organized under two recognized unions: the nurses under the Service Employees International Union, and the nonprofessional employees under Local 1305 of the Laborers International Union Of North America.

But Grane wasn’t so into the unions. While it hired most of the employees from the home to continue working at the newly named facility, Cambria Care Center, it refused to hire several union rep-employees who’d been agitators against the government’s sale of the home to Grane.

In addition, Grane refused to recognize the unions, claiming that because they’d been recognized by the home when it was a public employer, Grane as a private employer didn’t have to honor the “successorship” of the unions. It also tried to argue it shouldn’t be considered a “single employer” for liability purposes with Cambria Care Center.


Penn., Del., NJ Get in Line with NLRB

Professor Jeffrey Hirsch headshot

Professor Jeffrey Hirsch

The National Labor Relations Board filed a complaint on behalf of the unions, and an administrative law judge agreed with them, ruling that the employer was one entity, and that it had violated the National Labor Relations Act by failing to recognize and bargain with Local 1305 (though not the nurses union) and by not hiring the union officers “due to anti-union animus.”

Grane appealed to the 3rd Circuit, which agreed with the NLRB and the unions. The case shows that at least in Pennsylvania, Delaware, and New Jersey, private successor employers may have to bargain with the former public employer’s employees, says Professor Jeffrey Hirsch of the University of North Carolina School of Law.

Hirsch says that as a result of this decision, Grane will have to offer the rejected employees jobs and give them back pay. It will also have to bargain with the union.



States Vary on Friendliness to Unions

Whether a state even has to recognize a union – much less bargain with one or hire its reps – varies widely across the country, Hirsch says. “Some states, like Pennsylvania, and the federal government have systems that are similar to the private-sector NLRA.” In those systems, employees enjoy more rights.

But others are vastly different, he adds. “Most are far more anti-union – exhibit A: Wisconsin,” Hirsch says, referring to that state’s governor’s recent tangles with unions.

“As an extreme example, North Carolina not only fails to give state employees the right to unionize and bargaining with their employers (the usual rule for states with big differences), but actually voids any agreement that is collectively bargained,” he points out.


Proving ‘Union Animus’

As for employees who are not hired because of their union activities, Hirsch points out that the NLRA clearly makes that illegal. In this case it came down to an argument over the credibility of witnesses, and Grane had a hard time defending its decision to not hire four out of five of the union officers.

The company tried to argue that its hiring managers didn’t know about the officers’ union activities and that they had real reasons for not hiring them, but the NLRB judge didn’t believe that story, and the 3rd Circuit refused to question the judge’s decision about the managers’ credibility.

It’s really about who the NLRB judge believes. “That said, like all discrimination cases, it can be very hard to determine what motivated someone, especially where there isn’t clear evidence one way or another,” he says. “This is the type of issue that the NLRB deals with daily.”

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