St. Gabriel, a Veritas Senior Living Community in Murrells Inlet, South Carolina received a phenomenal outcome in the recent unfair labor practice proceedings against it at the National Labor Relations Board (NLRB). The Board recommended dismissal of both allegations of wrongdoing against the company. As a result of the Board’s recommendation one of the two charging parties chose to withdraw they claim. The remaining claim was dismissed outright as having no merit.
Background
St, Gabriel had two employees who acted contrary to its code of conduct regarding resident care. The company received the reports of wrongdoing, immediately suspended the employees with pay pending an investigation, contacted the South Carolina Department of Health and Environmental Control and the Office of the Long Term Care Ombudsman as required by S.C Statute.
The company completed its investigation and determined the employees’ behavior amounted to resident abuse as defined by S.C. regulations. The Ombudsman conducted an independent investigation. Upon completion of its investigation, the Ombudsman notified St. Gabriel that the conduct was indeed a violation of S.C. law against Abuse, neglect, and exploitation of long term care residents.
The company discharged and immediately notified the suspended employees. The employees sought relief at the NLRB. The employees claimed St. Gabriel did not terminated them for bad conduct. They alleged St. Gabriel terminated them because they were engaging in union organizing activity.
NLRB’s Unfair Labor Practice Investigation
The NLRB served the company with notice of the charges alleging violations of the National Labor Relations Act (the Act). Specifically, the Board was investigating whether the alleged union activity of the employees was a motivating factor in their discharge. The Board also suggested the extreme remedy of seeking an injunction which would put the abusive employees back into the facility pending the investigation and potential litigation of the case.
What Does the Act Say About Discharge?
It is unlawful to terminate an employee for their support or non-support of a union organizing effort. The test the NLRB uses if a four part test.
- The employee must be engaged in union or protected activity.
- The employer must have knowledge of the activity.
- The employer must take an adverse employment action
- The adverse action must be motivated by the employee’s union or protected activity.
The Board must find the presence of all four elements to establish an unlawful motivation for the adverse action. If the Board can establish an unlawful motive through those four steps, the employer has the option to demonstrate that it would have taken the action even if the unlawful motivation was not present.
St Gabriel’s Unfair Labor Practice Case
NLRA’s Managing Partner, Jim Allen, and Senior Labor Relations Advocate, Paul Sommerville attacked the four elements outlined above. For starters, there exist no evidence of any union activity by any employee at the facility, least of all these employees. The first element failed. Remember, the Board must establish all four elements and failure of the first fatally wounded their case. But, there was more…
St. Gabriel, a non-union facility, had no knowledge of any union activity by any employee. As it is impossible to prove you don’t know something, the burden to prove knowledge lies with the charging parties. They presented no such proof. Therefore, the second of the four elements failed. But wait, there’s more.
Because there existed no evidence of protected activity and no evidence that the employer had any knowledge of protected activity, the Board failed to establish that the terminations were motivated by protected activity. So, the fourth element also failed. The Board failed to make its case.
Overkill
Finally, just for good measure, NLRA put forth evidence demonstrating St, Gabriel had no choice in the terminations. The employees both engaged in conduct deemed abuse, neglect, or exploitation under S.C. regulation. The employer’s investigation reached that conclusion. The Ombudsman’s independent investigation reached that conclusion. As a result of this finding, S.C. regulation forbids any provider from hiring these individuals to work in a long term care facility. So, even if the Board met all four elements and established the employer acted with an unlawful motive, the employer would have taken the same action absent that motivation.
Early Action Was Key
An NLRB notice of an unfair labor practice charge at first glance appears innocuous, just another administrative hoop to jump through. Nothing could be further from the truth!
The key to handling these charges is attacking their substance and legal theories early. St. Gabriel’s staff are not NLRB experts. They are long term care experts. If they handled the investigative process themselves, it is very likely that the NLRB would have found the allegations to be meritorious. As a result of a finding of merit, the case moves on to either settlement or trial in front of an administrative law judge.
Trials are expensive, very time consuming, and the outcome is never assured (O.J. Simpson, Casey Anthony, etc.) But, trials are not as expensive as settlement would have been in this case. When the NLRB fins a discharge allegation meritorious, the required remedy is reinstatement. As we just discussed, reinstatement would be contrary to S.C. regulation. In that case, the Board requires an employer to pay a premium for the aggrieved employees’ waiver of reinstatement. This is commonly called “front pay” and is usually calculated up to two years’ of the employee’s salary.
Not So!
St. Gabriel engaged NLRA. NLRA fought vigorously for dismissal before a formal complaint issued. This focus and commitment by St. Gabriel set the stage for the great outcome. NLRA secured the dismissal. St. Gabriel was not forced to hire or pay off employees discharged for proper cause.
Congratulations to St. Gabriel of Murrells Inlet!
If you find yourself charged with an unfair labor practice charge, NLRA can help you. Book here for a free consultation about your case. We believe that all employers, regardless of size, deserve a vigorous and focused defense against unscrupulous charges.
