The owner and manager of six Connecticut nursing homes must pay up to 700 former employees replaced during a 2012 strike for up to 12 years of back pay, a federal judge ruled this week.
Administrative Law Judge Kenneth Chu made the staggering ruling on behalf of the National Labor Relations Board Wednesday, finding for the New England Health Care Employees Union, District 1199, on all but one of its decade-old complaints.
The SEIU-affiliated union had charged six skilled nursing facilities owned and operated by CareOne and HealthBridge Management failed to negotiate in good faith; failed to provide requested information during bargaining; implemented unaccepted contract proposals without first bargaining to an impasse; unlawfully threatened to close facilities unless the union agreed to concessions; and refused to reinstate employees who engaged in an unfair labor practice.
Chu found that the centers violated all of those labor standards, except in threatening to close facilities in the midst of negotiations. The accused facilities were Danbury Health Care Center, Long Ridge of Stamford, Newington Health Care Center, Westport Health Care Center, West River Health Care Center and Wethersfield Health Care Center. Wethersfield closed during negotiations, and the judge accepted that the companies’ negotiators did truly consider closing for financial reasons.
Otherwise, CareOne, HealthBride and its centers violated the National Labor Relations Act “by failing to confer in good faith, insist in proposals that were predictably unacceptable to the union, engage in surface and bad faith bargaining … threatened and did lockout employees in support of its final bargaining proposals,” Chu found.
As a remedy, he ordered the companies to rehire locked-out employees and to reimburse all affected strikers for lost wages and benefits they incurred since July 3, 2012. The companies would also have to account for tax consequences for making lump sum payouts.
It was unclear Thursday how much the court order could cost the companies, but Chu’s ruling noted that approximately 700 bargaining unit employees at five centers went on strike to protest unfair labor practices.
CareOne is a family-owned senior care provider with locations in New Jersey, Massachusetts, Pennsylvania, Michigan and Connecticut. Centers for Medicare & Medicaid Services data on Care Compare shows it operates 37 facilities with an average overall star rating of 3.8.
A spokeswoman for CareOne told McKnight’s late Thursday that, “as a matter of policy, CareOne does not comment on litigation.” Multiple attempts by McKnight’s Long-Term Care News to reach attorneys for CareOne and HealthBridge went unanswered.
Union busting or market reality?
Decisions by administrative law judges are pending until reviewed by the NLRB board, and parties can appeal.
Chu’s 156-page ruling gave a blow-by-blow account of 38 bargaining sessions meant to help forge for a new contract, which would have been the first fresh agreement at the six centers after CareOne took over operations.
HealthBridge had originally entered into contracts for the six centers, and those ran from 2004 through 2011. By March of 2011, however, a contract extension was set to expire and the union asked for another extension. According to the court documents, the centers refused “while sending out information to the residents that the union was planning on striking.”
Concerns about a lockout were also mounting among union members, although the centers’ representatives denied they were planning one. In coming months, the union’s lead negotiator repeatedly slammed the providers’ “massive takeaways” and accused the companies of pushing for an impasse.
Representatives for the employees accused the provider of trying to “bust the union,” while the operators’ lead negotiator explained that it had to attempt to address both pay and work conditions in its first opportunity to bargain, arguing that the previous contract didn’t align with modern conditions in the healthcare market.
Strike follows contentious relationship
By that December, the employers said they were not willing “to continue to operate indefinitely without new contracts” and informed the SEIU that they were considering a lockout. The union then agreed to four more bargaining sessions, but a lockout followed at the West River location, forcing 115 CNAs, housekeeping, dietary and other workers out of their jobs.
Negotiations continued and grew more contentious, with major disagreements over wages, healthcare contributions, and, most notably, a switch from a pension to an employer-sponsored 401(k) plan.
In the spring of 2012, the five centers still in operation notified the union they were going around the bargaining process, according to documents. They implemented changes that had been offered (and rejected) in a previous proposal that negotiators called the “last, best and final” offer.
Three days after those non-negotiated benefits went into effect, the union voted to strike and sent a 10-day notice to the centers. If the “unilateral changes” were rescinded, the union members agreed to keep working.
But the CareOne and HealthBridge representatives instead notified the union that they viewed the workers strike as an economic, or less protected, action and would “permanently replace any bargaining unit employee engaged in the strike.”
On July 25, the union informed the centers that it had filed an unfair labor practice charge, which was later amended multiple times to include all the allegations addressed by Chu this week.
CareOne has had a contentious relationship with the local SEIU and earlier this year suffered a legal setback in an attempt to sue the union over defamation.
