Marking a watershed in the unionization dispute between Yale-New Haven Hospital and the union seeking to organize workers there, an independent arbitrator has ordered the hospital to pay employees and the union $4.5 million in damages.
In a 47-page report released yesterday, independent arbitrator Margaret Kern rejected the union’s request for a bargaining order but found that a majority of eligible workers had signed authorization cards in support of a union last fall. Both hospital officials and union leaders said they plan to comply with the decision, although it is still unclear whether union elections will take place in the near future.
Kern also struck a blow at the upper echelons of hospital management, finding that Yale-New Haven President and CEO Marna Borgstrom EPH ’79’s February testimony was “inconsistent” with “documentary evidence.”
“This was not a situation, so familiar in heated union campaigns, where a few rogue managers lose their composure and say things they later regret,” Kern wrote in the report. “The employer’s conduct was a methodical dismantling of the terms and commitments of the Election Principles Agreement.”
Kern’s ruling calls for the SEIU to receive $2.3 million to recoup its organizing expenses last year and $2.2 million to be divided among the 1,736 employees who were eligible to participate in the secret ballot elections originally scheduled for last December. Yale-New Haven Spokesman Vin Petrini said although the hospital is prepared to accept the decision, it may dispute the monetary extent of part of the remedy.
A secret ballot election was fast approaching last December when the union filed complaints that the hospital had violated a number of commitments enumerated in a March 2006 Election Principles Agreement, which set forth the provisions of a fair election. As a result, the National Labor Relations Board postponed the elections — and, after another back-and-forth last spring, ordered the hospital to display apologetic posters for 60 days.
Throughout, the hospital apologized for the mistakes of middle-level employees. But in her report, Kern blamed top executives.
Vice President Richard D’Aquila and Senior Vice President of Human Resources Edward Dowling, among others, are described in the report as having either directly or indirectly furthered an anti-union campaign. The endeavor, Kern noted, was executed by an outside consulting firm, IRI Consultants to Management, Inc., which she found the hospital was not supposed to hire according to the terms of the fair election agreement.
Even the union acknowledged the unusual magnitude of the remedy.
Meyerson said the $4.5 million monetary compensation was “unprecedented” in a unionization dispute like this and will bolster SEIU-1199’s funds, but the money itself cannot ensure free and fair elections for hospital workers. In the near future, the union will examine ways to repair the harm done by the hospital’s transgressions and will work with local residents to develop a community response, he said.
“Full justice for us will mean that the workers have a free and fair ability to unionize, and we haven’t given up on that,” Meyerson said. “I would not say that we would never consider [a secret ballot election], but the conditions for free and fair elections were destroyed by the hospital’s activities.”
The hospital filed a petition for a secret ballot election with the NLRB last March, much to the surprise of community members and city officials. But a settlement with the NLRB concerning the hospital’s violations has postponed the petition’s review until the hospital fulfills its 60-day postering phase.
Should the petition be accepted by the NLRB, Meyerson said the union will not be participating in what he termed a “sham” election.
Prior to the remedy’s release, union leaders said they would most prefer a bargaining order, in which a union automatically would be recognized by the employer, or a check-card election, in which a majority of pro-union cards would create a union. But the hospital said a secret ballot election is the only tenable method for fair elections.
“We’ve always believed our employees deserve the right to vote, and this decision clearly affirms that right,” Petrini said. “With this decision, hopefully we can close the book and move on.”
Although Kern found the hospital guilty of a number of federal labor law violations, she wrote in the report that these findings had overlapped with the NLRB settlement and thus were already “in the process of being fully remedied” through the 60-day postering phase.
Instead, her $2.3 million remedy seeks to address the additional benefits that hospital employees were, in her view, promised but denied under the Election Principles Agreement. That agreement, brokered by City Hall officials — with the support of Yale officials and students — in March 2006, offered workers additional protections from employer intimidation in exchange for the city’s granting the hospital the zoning rights to build a $470 million cancer center.
“Employees were deprived of the right to truthful information, the right to do their job uninterrupted by solicitation, and the right not to participate in captive audience meetings,” Kern wrote. “The question is how to recompense employees for these losses and how to convert the value of intangible benefits into a tangible, meaningful remedy.”
University President Richard Levin, who sits on the hospital’s Board of Trustees, could not be reached for comment Tuesday.
Though the arbitrator’s authority is limited by the constraints of federal labor law, Board of Aldermen President Carl Goldfield said he found the remedy somewhat disappointing because it does not address any structural changes in hospital procedures and will have little impact given that $4.5 million is a small amount compared to the hospital’s aggregate assets.
He said it “really doesn’t act to resolve the fundamental questions of what procedures should be put in place to ensure that workers have a fair chance to form a union.”
“You’ve got to have a lot of faith in the penal aspects of monetary damages to believe it will make a difference in how the hospital behaves in future union organizing efforts,” Goldfield said.
The union-hospital saga has been ongoing for nearly a decade.