Overtime work is controversial in the healthcare industry, and in recent years several states have adopted laws to ban mandatory overtime except in cases of an emergency. Most of these laws have been passed at the urging of unions who argue that tired workers increase patient risks. Of course, these same unions stand to gain members as hospitals and nursing homes increase staffing to comply with the ban on mandatory overtime.
In early August, the healthcare unions got a little lesson of their own when a federal appellate court in California upheld a ruling by the National Labor Relations Board that a local union violated federal law by calling for its members to refuse to perform overtime work without giving the employer at least ten days prior notice. (SEIU, United Healthcare Workers- West v. NLRB, 9th Cir. 8/3/09)
The case arose at a California hospital where the housekeepers and linen aides were represented by a local of the Service Employees International Union. Although their contract prohibited mandatory overtime except in an emergency, the hospital had historically relied on voluntary overtime to make up for staffing shortages. The issue came to a head when the hospital proposed a change in the way that it processed linens that the union claimed would amount to subcontracting in violation of the union contract. Unwilling to file a grievance and just let the grievance process take its course, the union called on its members to refuse to perform any overtime work for a week. Almost immediately, the hospital was unable to find any volunteers to work overtime.
The hospital filed an unfair labor practice charge against the union for failing to provide timely notice of its action. Under Section 8(g) of the National Labor Relations Act, unions must give at least ten days notice of any strike, picketing or other concerted refusal to work at a healthcare institution. The union argued that both state law and the union contract prohibited mandatory overtime.
Recognizing that employees were entitled to decline overtime work, the court observed that no violation of the law would necessarily occur even if all the employees, acting independently, were unwilling to volunteer for overtime. Here, however, the members did not act on an individual basis. Rather, their action was a concerted refusal to work because it was orchestrated by the union.
This case marks a growing trend to find conduct unlawful if done on a group basis even if the same conduct would be protected on an individual basis by an employee in the healthcare industry. Thus, employees are legally protected when they individually refuse to cross a picket line, but are subject to being discharged if they engage in the same conduct on a concerted basis without providing then necessary ten-day notice applicable to the healthcare industry.
The real winners from this decision are members of the public who are insured that the continuity of their healthcare cannot be interrupted without adequate notice as a result of a labor dispute.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
