Healthcare Workplace Update - Labor and Employment Laws and Developments in Healthcare Industry

The NLRB Acting General Counsel’s latest effort to limit the effect of arbitration awards, even though they may be acceptable to the charged party against whom related unfair labor practice charges are pending before the agency (often the employer), has come up short.

The NLRB Acting General Counsel’s 2011 “Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements” (Memorandum 11-05, January 20, 2011), announced the Acting General Counsel “will urge the Board to modify its approach in post-arbitral deferral cases” to switch  the burden of proof from the General Counsel to the party urging deferral.  In other words, the party advocating reliance on an arbitrator’s award to dispose of related unfair labor practice charges would have to show the award meets the Board’s standards for acceptance, instead of requiring the Board’s prosecutor to show that it does not, as is the case now.

The Board has turned down its General Counsel’s invitation – at least for now.  The rejection came in  the Board’s decision to defer to an arbitrator’s award reinstating an employee without backpay in Shands Jacksonville Med. Ctr. Inc., 359 NLRB No. 104 (Apr. 26, 2013).  There, the Acting General Counsel asked the Board to require the employer, which had urged agency approval of the award to dispose of a similar Board charge, to show that “(1) the contract had the statutory rights incorporated in it or the parties presented the statutory issue to the arbitrator; and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.” 

But the Board found the Acting General Counsel had not also proposed revisiting agency precedent on when an arbitration award is “clearly repugnant” to the Act.  This precedent, it said, spoke directly to the “crux” of this case – where the arbitrator actually found in the grievant’s favor on the merits and ordered her reinstatement, but denied her backpay on grounds that were not “palpably wrong.”  Accordingly, “[g]iven those circumstances” the Board “decline[d] to pass on the Acting General Counsel’s proposal in this case.”

Without a clear ruling from the Board on changing the burden of proof, healthcare employers should expect the Acting General Counsel to continue his efforts to press for agency acceptance of GC Memorandum 11-05 with post-arbitral deferral cases.

Unionized healthcare employers may be interested in a recent post on the Jackson Lewis LLP Unions & Labor Law Reform Blog addressing union information requests in the hospital setting.  Click here for more information.

A certified nurse’s assistant cannot pursue a disability discrimination claim under the Americans with Disabilities Act because she failed to exhaust her administrative remedies, the U.S. District Court for the Eastern District of Tennessee ruled in Davenport v. Asbury Inc., No. 3:12-CV-00445 (E.D. Tenn. Mar. 29, 2013). 

Under the ADA, a claimant must file a discrimination charge with the U.S. Equal Employment Opportunity Commission or a state counterpart within 180 or 300 days of the alleged discrimination.  Here, the Court found the charge by the nurse’s assistant initially filed with the EEOC was invalid because it was signed by her attorney, rather than plaintiff herself.  While an attorney may file a charge on behalf of a client, the Court explained, the lawyer’s signature alone is not proper verification, unless the attorney personally swears to the truth of the facts contained in the charge and does so based on personal knowledge of those facts. 

The Court further found the signed intake questionnaire the plaintiff submitted prior to filing her charge could not substitute for an official charge, because it was not verified in accordance with the ADA and the EEOC’s regulations – i.e. it was not notarized or signed under penalty of perjury. 

Finally, the Court found the verified amended charge the plaintiff filed after the EEOC issued a right-to-sue notice did not exhaust her administrative remedies because it did not relate back to her intake questionnaire or her initial charge.  The Court explained that because “the purpose of the verification requirement is to protect the defendant from responding to frivolous charges and ‘demands an oath…by the time the employer is obliged to respond to the charge,’ plaintiff, in filing her verified amended [charge] after the EEOC closed its case and this suit was initiated and removed to this Court, did so too late.”

The National Labor Relations Board announced on March 12, 2013, that it will not seek en banc rehearing of Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013), in which the U.S. Court of Appeals for the District of Columbia Circuit held that the President’s January 4, 2012 recess appointments of three members to the Board were invalid.  Instead, the Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the U.S. Supreme Court for review of that decision.  The petition for certiorari is due on April 25, 2013.

Currently, Chairman Mark Gaston Pearce is the only member of the Board whose appointment is valid under the reasoning of Noel Canning. Confirmed by the Senate on June 22, 2010, he serves a term ending on August 27, 2013.

If the U.S. Supreme Court accepts the case, oral argument likely will be scheduled sometime during the Supreme Court’s term that begins in October 2013.  Until the Supreme Court issues an opinion, the current uncertainty remains, and cases, rulemaking and appointments made by the Board since August 2011 may be subject to legal challenge. 

For prior postings on Noel Canning, click here and here.

Home health aides who deceived their employer about their intention to strike created a reasonably foreseeable risk of imminent danger to their patients and were not entitled to be reinstated to their original patients and schedules after they were given new assignments following the strike, the U.S. Court of Appeals for the Second Circuit has ruled. NLRB v. Special Touch Home Care Servs., Inc., No. 11-3147-ag (2d Cir. Feb. 27, 2013).   For details, click here.