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NLRB Ruling Extends 10-Day Notice of Intent to Strike

NLRB Ruling Extends 10-Day Notice of Intent to Strike
  • April 15, 2009

The National Labor Relations Act’s section 8(g) requires all labor organizations to give health care employers a minimum of 10 days’ notice before they can engage in a “concerted refusal to work.” The National Labor Relations Board has held that the act of unit members refusing to work voluntary overtime is considered a “concerted refusal to work” and requires a 10-day notice under the NLRA.

Under the NLRA, labor organizations have the right to strike against health care employers and facilities. In that context, section 8(g) of the NLRA is designed to ensure the safety of patients and residents of health care facilities when unions threaten to disrupt the continuity of care. Section 8(g) requires that all labor organizations give health care employers, and the Federal Mediation and Conciliation Service, a minimum of 10 days’ notice before they can legally engage in a “concerted refusal to work,” which includes protected activities such as strikes or picketing.

The Board generally has held that any form of picketing will trigger the notice requirement, especially when workers seek to block access to a health care site or achieve a work stoppage.  It has interpreted a “concerted refusal to work” broadly; for example, if unions engage in a demonstration with informational picket signs, even where no work stoppage is sought and no disturbance is caused, the notice requirement is usually triggered.

The Board has found (though inconsistently) that union-sponsored activity intended directly to pressure a health care facility to change its policies will be considered part of a refusal to work, and therefore trigger the notice requirement.  Recently, the Board has held that even unit members refusing to work voluntary overtime represented a “concerted refusal to work,” and thus required the 10-day section 8(g) notice.

Typically, the Board has taken a “strict” approach in analyzing a labor organization’s compliance with section 8(g). “Substantial compliance” with the requirements is usually insufficient. Therefore, when a labor organization does not completely comply with the section 8(g) requirements, it risks having its concerted activity found to be unprotected.

Who Is Covered?

Employees of health care employers must be acting as a labor organization, or under the authority of such an organization, to be covered by the 8(g) notice requirement. Employees who strike or picket while not acting as a “labor organization,” or under the direction or authority of one, are not required to provide the 10-day notice.

Are Any Employee Actions Exempt?

The Board has offered employees one general, if vague, form of “emergency” exception to the notice requirement: where employees strike spontaneously to protest an employer’s flagrant unfair labor practices, section 8(g) might not apply. Courts tend to see short, spontaneous acts as transpiring without union planning, and therefore beyond the scope of a notice requirement.   See, e.g., East Chicago Rehabilitation Center v. NLRB and Council’s Center for Problems of Living, which found spontaneous picketing to protest an employee’s discharge did not require 8(g) notice.  Employee delay in protesting such “flagrant” unfair labor practices, however, will likely mean the action is no longer spontaneous, and therefore subject to the notice requirement.

Can the Timing of the Strike Change?

Delay in commencing a job action once notice is given presents yet another issue.  Before 2003, the Board had developed a “rule of reason” that a union did not have to file a new notice if it began its strike within 72 hours of the date and time indicated to the health care employer in its notice. In such instances, however, the union was supposed to provide the employer 12-hours’ advance notice of the delay and the new start time. The Board also indicated it might not require a new notice of any kind for strikes that began after “de minimis” delays of only a few hours that did not disrupt health care. 

Since 2003, however, the Board and some Circuit Courts of Appeal have rejected Board-created exceptions to the 8(g) notice requirement. In Beverly Health & Rehab. Serv. v. NLRB, the D.C. Circuit stated that the plain language of section 8(g) does not provide for any delays, no matter how reasonable, beyond the 10-day notice period or the time specified, unless both parties consent. If courts adhere to this clear rule, unions will not be permitted any unilateral delays — no matter how short, and even if they provide  notice — and will be required to begin strikes as scheduled or file new 10-day notices before doing so.

Consequences and Penalties

Employers normally cannot discipline employees who engage in protected union activity.  When a union fails to provide adequate notice of a strike under section 8(g), however, health care employers can sanction or fire employees legally; pursue compensatory damages; seek declaratory and injunctive relief to prevent further strikes or actions without notice; and pursue unfair labor practice charges against the strikers or union involved.

A union’s failure to provide the 10-day notice specifying the date and time an action will commence removes most legal protections related to the strike. For example, in Beverly Health & Rehab. Serv. v. NLRB, the D.C. Circuit found that where a union failed to give proper notice of its planned strike, its workers were not protected by the NLRA: “[The health care employer] Beverly contends the strike was unlawful because the Union failed to comply with the statutory notice requirement in section 8(g) of the Act, 29 U.S.C. Section 158(g). We agree and, accordingly, conclude that Beverly was under no duty to rehire the workers who participated in the unlawful strike.” In Beverly Health, the Court refused to enforce a Board order because the union violated section 8(g) by unilaterally delaying the strike for three days. Citing the plain language of the notice requirement, the D.C. Circuit said neither party is allowed to extend the notice unilaterally.

In Minnesota Licensed Practical Nurses Assoc. v. NLRB, the Eighth Circuit extended Beverly Health, and upheld a Board ruling stating that even a four hour-strike delay violated section 8(g). The striking nurses consequently lost their protected status, and their employer legally fired them. Although the Court found that patient care had not been affected, it also noted that the employer had replacement workers ready based on the time specified in the union notice, and that strikers did not even bother to alert the clinic of the four-hour delay. The Court rejected any claim that 8(g)’s legislative history showed an intent to allow unions “reasonably” to delay strikes.

What Employers Should Do

Health care employers should contact their labor attorney immediately after they receive a section 8(g) strike notice.

Both the employer and the union must agree in writing to any changes to an original section 8(g) notice. Therefore, if the union asks for any alterations, even minor ones, the employer does not have to agree to them, and the union cannot unilaterally make those changes without the employer’s approval. If the employer does not agree to the changes, the union will likely have to provide a new 10-day notice that includes the modifications it sought.   It remains unclear, however, whether an unanticipated “de minimis” delay of fewer than four hours in beginning a strike will always require a new 10-day notice.

For more information on protecting your health care company from work stoppages, contact a Jackson Lewis attorney who can guide you through your risks and options.

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