The unionization campaign at Yale-New Haven Hospital, already nine years in the making, could soon see many more months — or even years — of legal wrangling.
Margaret Kern, a neutral arbitrator, will ultimately rule on more than 200 charges of unfair labor practices filed by SEIU/1199 against the hospital, but her decision appears to be at least weeks, if not months, away. More importantly, just how the hospital will respond to her decision remains an open question, one that could play out in the months to come before the arbitrator, in court and at the National Labor Relations Board. And how decisions made by the arbitrator and NLRB, two parallel processes, would affect one another is a thorny legal issue, labor law experts said.
The arbitrator’s position was created by an historic Election Principles Agreement, which was signed in March 2006 by the union and hospital to govern conduct in the months leading up to an NLRB-supervised election scheduled for Dec. 20-21. But the NLRB postponed the election in early December, after Kern found that the hospital violated the agreement and labor law by holding mandatory meetings during work time in which managers discussed the union with their employees.
Kern has yet to rule on more than 200 other charges, however, and has said previously that she will name a remedy for any misconduct she finds. Under the agreement, she has “broad discretion to fashion broad remedies,” but exactly which ones are not described. There is one charge of misconduct against the union still pending as of last week.
In transcripts of arbitration hearings that were made public last month, hospital lawyers proposed new restrictions on acceptable behavior coupled with a new secret ballot election. As of Feb. 27 — the date of the transcript — the union lawyers were requesting a bargaining order, which would bypass both an election and a “card check” and force the hospital to recognize the union and begin negotiating a contract with it. It is unclear if the union is still seeking a bargaining order; in public the union has consistently maintained it wants card check neutrality as a remedy for the hospital’s violations.
In a card check, a union is formed when a majority of eligible workers sign union cards.
The hospital has just as consistently maintained that it will settle for nothing less than another secret ballot election, a point most plainly made March 7 when the hospital, in a move that surprised the union and city leaders, filed its own petition with the NLRB calling for an election.
Hospital spokesman Vin Petrini declined to “speculate” this week on how the hospital would respond to the arbitrator’s decision, whatever it is. But previously he did not rule out challenging the arbitration decision, even though the Election Principles Agreement says any decision would be binding on the parties.
“We obviously want to keep all options open, including the option of allowing our employees to vote on everything,” he said previously.
The hospital has already challenged the arbitrator’s jurisdiction in the case, saying her role ended once the union withdrew its election petition. Kern did not agree that her jurisdiction had expired once the election petition was withdrawn. But a court challenge to the arbitrator’s decision is easily possible.
As with any binding contract, disputes over the arbitrator’s decision would be handled through the standard court procedure, said Fred Feinstein, former General Counsel for the NLRB, who said he is not familiar with all the details of the Yale-New Haven case.
The union has filed similar charges of hospital misconduct, totaling more than 200 charges, with the NLRB, but withdrew them when it withdrew its election petition. The same charges were refiled when the hospital filed its own election petition. How an independent arbitrator’s decision could influence the NLRB — or supplant its decision-making — is murky.
“How the board sees its role relative to the arbitrator is not clear,” Feinstein said. “These are the kinds of legal issues that we’re seeing now as unions make agreements outside the NLRB process.”
Over the last seven years, the number of private agreements between unions and employers during organizing campaigns has increased, Feinstein said, as unions are increasingly believing that the NLRB process does not provide enough enforcement power and is unfair to their campaigns. The agreements generally extend rights, such as access to workers, to the union, and add constraints to acceptable campaign behavior above and beyond what existing labor law guarantees. In some cases, though not in this agreement, employers agree to “neutrality,” in which they will not actively oppose the union’s campaign. Card check neutrality includes a neutrality agreement.
Had there not been an election agreement, any disputes over conduct before an NLRB-supervised election would be handled by the NLRB alone. But having parallel processes — as unorthodox and complex as it may be — in the NLRB and arbitration would not necessarily lead to a conflict, said John Raudaubaugh, a former NLRB member.
The resolution of an NLRB case can take nearly a year or more. According to John Cotter, assistant regional director in the NLRB’s Hartford office, it normally takes four to six months for an administrative law judge to issue a decision in a case, measured from the time the regional director decides that there is sufficient evidence of unfair labor practices to proceed. Cotter said the Yale-New Haven case is still in the investigation phase, and the union filed new charges as recently as two weeks ago, making an estimate of the investigation’s length impossible.