Labor Board to Review Hospital Union Dispute

(CN) - The National Labor Relations Board must take a second, unbiased look at whether Sutter East Bay Hospitals improperly disciplined a union employee for trying to organize a new union in hospital cafeterias, the D.C. Circuit ruled.

The federal appeals court vacated the board's finding that the hospital operator had disciplined and suspended Beverly Griffith based of her advocacy of the National Union of Healthcare Workers, which some workers hoped would replace the existing Service Employees International Union.

The board's complaint for labor violations first filtered through an administrative law judge, who found the hospital administrators' testimony to be "particularly disingenuous, deceitful, and not worthy of belief."

But Chief Judge David Sentelle of the D.C. Circuit said the administrative law judge failed to consider hospital managers' mindset when they acted on reports that Griffith had intentionally spilled water at the cafeteria table of rival union workers, disobeyed an order to leave the premises and issued a profanity-laced tirade when she learned she'd been suspended.

The administrative law judge "declined to even examine what [Sutter East Bay's labor relations specialist] believed, whether his beliefs were reasonable, and whether his actions based on those beliefs were consistent with Sutter East Bay's policies and past practice," Sentelle wrote.

Sentelle expressed concern that the administrative law judge had "treated conflicting evidence here with an almost breathtaking lack of evenhandedness."

"The employer's witnesses saw their testimony completely disregarded for the slightest of immaterial inconsistencies, while the union's witnesses survived even material contradictions," he wrote.

As they rehear evidence on the disciplinary actions, the National Labor Relations Board and the administrative law judge "must take care to 'draw all those inferences that the evidence fairly demands' - no more and no less," Sentelle cautioned, citing U.S. Supreme Court precedent.

"That requirement is the 'foundation of all honest and legitimate adjudication."

Though Sutter East Bay won its bid for review on the disciplinary action, the three-judge panel upheld the board's ruling that the hospital operator violated labor law by illegally spying on its employees' union activities and changing its solicitation policies to stifle support for the new union.

When two SEIU representatives visited Alta Bates Hospital in Berkeley, Calif., Griffith allegedly followed them, called them "scabs" and deliberately spilled a cup of water at their cafeteria table. Griffith claims the spill was an accident.

Bruce Hatten, the hospitals' labor relations specialist, wrote up Griffith for "misconduct and inappropriate behavior." She was later suspended and then fired in 2009 for "attempting to work while suspended and for [a] tirade on March 4."

Hatten also hired private security guards, told them to dress in suits instead of their uniforms and gave them a camera to watch for any activity by new union members.

Because Sutter East Bay did not challenge the board's finding that it had engaged in illegal surveillance, the D.C. Circuit sided with the board.

It also upheld the board's determination that the hospitals' solicitation rules discriminated against the new union. According to the board, Sutter East Bay only banned solicitation in cafeterias following the effort to certify a new union. Members of the existing union had been allowed to meet in cafeterias and hand out flyers.

"As always, restrictions on employee solicitation during nonworking time in nonworking areas are presumptively invalid absent a showing of special circumstances," Sentelle wrote.

"The Board's conclusion that Sutter East Bay changed its solicitation rules to squelch union activity in March 2009 is supported by substantial evidence."

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