NLRB Judge Rules Hospital Unlawfully Discriminated Against Employees Represented by 1199SEIU Health Care Workers East

It is unlawful for a private sector employer to discriminate against employees based upon their membership in or support for a union. This rule applies to all phases of employment – hiring, assignment, transfer, evaluation, promotion, discipline and termination. Attorney Betsy Ehrenberg helped persuade an administrative law judge of the National Labor Relations Board that the Southcoast Hospitals Group's policy of considering its non-union workers before union workers to fill vacancies in its non-union hospitals is unlawful discrimination under the National Labor Relations Act.

The Southcoast Hospitals Group includes three hospitals and multiple related facilities in Southeast Massachusetts. LPN's and service and maintenance workers in only one of the hospitals, Tobey Hospital in Wareham, are represented by 1199SEIU. Employees in the other two hospitals - St. Luke's in New Bedford and Charlton in Fall River - do not have Union representation. Southcoast maintained a policy that expressly prohibited union-represented employees from being considered for vacancies at the two non-union hospitals until the second round of interviews. As a result of this policy, 215 Tobey bargaining unit members were shut out from first-round consideration in vacancies in any of employer’s 4,800 non-union positions.

The Administrative Law Judge assigned to the case determined that the employer failed to identify any legitimate business reason for discriminating against union-represented employees in this manner. The Judge rejected the employer’s claim that its policy “levels the playing field” because the Union’s contract prefers union-represented employees for vacancies at Tobey. The ALJ stated that the Employer’s policy cannot be equitable in nature because rather than level the playing field, it exacerbates an outsized bias against union employees. The ALJ ordered the Hospital to rescind its policy and make whole certain employees who were passed over for vacancies as a result.

The deadline for the parties to object to the ALJ's decision had not passed as of the date this summary was posted.