Instead of Bargaining, Labor Board Orders Rerun Election for Hospital's Unfair Practices

  • December 9, 2004

A Florida hospital that committed numerous unfair labor practices during a union campaign was not ordered to bargain with the union to remedy the violations. Voting 2 – 1 to use the "traditional remedies" such as reinstatement of wrongfully discharged employees to overcome the coercive effects of the employer's unlawful conduct, the National Labor Relations Board declined to issue a "Gissel" order requiring the hospital to bargain with the union. [Hialeah Hosp., 343 N.L.R.B. No. 52, 10/29/04.]  

The Board decided to reject the recommendation of the administrative law judge that a bargaining order was the appropriate remedy, even though the hospital was found to have fired a pro-union employee and threatened all other department employees with discharge if they supported a union. All three Labor Board members adopted the law judge's findings that the hospital had threatened reprisals, made promises of promotions to employees who campaigned against the union, conducted secret videotaping of, and subsequently discharged, a pro union employee. However, Members Battista and Schaumber found "that the coercive effects of the [hospital's] conduct can be erased, and a fair rerun election ensured, by the use of the Board's traditional remedies." 

In August 1999, the Carpenters and Joiners of America began a campaign to organize the hospital's engineering workers, obtaining signed authorization cards from nine of 12 workers. Shortly after the hospital refused the union's recognition request and learned of the petition for an election, the hospital vice president held a mandatory meeting with all bargaining unit employees where he threatened to find out everything and get rid of any workers supporting or contacting the union. Other unlawful actions included a promise to an employee that he would get a promotion if he convinced others to vote against the union, the enforcement of a policy against using the employee lounge after the end of shifts, removal of amenities used by the bargaining unit employees, and the surveillance and discharge of an employee thought to have been the union's primary contact despite his clean 16-year record of job performance. 

The union lost the representation election by a 7-4 vote. Months later, the vice president implicitly threatened the engineers with discharge if they engaged in any further union activities, using the discharged employee as an example of a "rotten apple" and advising others to quit if they were unhappy.

Based on the threats, adverse treatment of union supporters, surveillance of pro-union employees, and promises of rewards for not supporting the union, the administrative law judge found the hospital had violated the National Labor Relations Act by committing unfair labor practices. The law judge recommended that the appropriate remedy be a "Gissel" order to bargain with the union rather than hold a rerun election. In NLRB v. Gissel Packing Co., 395 U.S. 575, 71 LRRM 2481 (1969), the U.S. Supreme Court upheld the board's authority to order an employer, as a remedy for its unfair labor practices, to recognize and bargain with a union based on authorization cards from a majority of employees. "Gissel" orders are issued when the atmosphere has been so tainted by an employer's unfair labor practices that the possibility of a fair rerun election is slight.

While accepting the findings of unfair labor practices, the Board majority rejected the law judge's recommendation to issue the bargaining order. "A Gissel bargaining order is an extraordinary remedy," the Board noted. "The preferred route is to provide traditional remedies for the unfair labor practices and to hold an election, once the atmosphere has been cleansed by those remedies." Reminding that a bargaining order is an extraordinary remedy to be used only in exceptional cases, the Board preferred the traditional remedies, including reinstatement of engineer-the discharged employee, to remedy the effects of the hospital's unlawful conduct.

Dissenting Board Member Liebman maintained a bargaining order was warranted due to the extensiveness of the unfair labor practices and the likelihood of their recurrence. She noted that the coercive effects of the violations were unlikely to be dissipated or diluted within the small bargaining unit. Noting the Board previously has considered threats of job loss and discharge of union supporters "among the most flagrant interferences" with employee rights, she said the discharge of the pro-union employee was not likely to be forgotten, and the hospital had indeed continued the unlawful threats even after the election.  

Editor's Note: This decision may signal an increasing reluctance by the Labor Board to issue bargaining orders, preferring the rerun election as the more effective remedy. Even in this case where management allegedly continued to threaten employees with unlawful retaliation following the election, the Board did not find the need for the "extraordinary remedy" of a bargaining order.

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