National Labor Relations Board Issues Memo Regarding South Oaks Hospital-Northwell Health
To:
Region 29
From:
Subject: Local 1199 SEIU (
536-2581-0180
536-2581-3370
536-2581-3370-7300
536-2581-3384
This case was submitted for advice as to whether the Union breached its duty of fair representation by willfully misleading employees about their future terms and conditions of employment and waiving their contractual rights to grieve an involuntary transfer and to receive severance pay. We conclude that, while the Union violated Section 8(b)(1)(A) of the Act by willfully misleading its employees about maintaining all of their terms and conditions of employment at the new employer, the Region should issue a merit dismissal of the charge, pursuant to Section 10122.2(c) of the Casehandling Manual, because the misrepresentation had no impact on employees' terms and conditions of employment. We also conclude that the charge regarding the Union's waiver of the grievance procedure and severance pay should be dismissed, absent withdrawal, because the Union's negotiations were not discriminatory, in bad faith, or arbitrary.
FACTS
In early 2017,3 South Oaks informed the Union that it had agreed to sell Broadlawn to the
On
On
The transaction between South Oaks and
We conclude that the Union breached its duty of fair representation in violation of Section 8(b)(1)(A) by willfully misleading employees about the terms and conditions of employment they would receive post-transfer, but the Region should issue a merit dismissal of the charge, pursuant to Section 10122.2(c) of the Casehandling Manual. We also conclude that the allegation regarding the Union's waiver of the employees' contractual rights to grieve the transfer and to receive severance pay should be dismissed, absent withdrawal, because the decision was not discriminatory, in bad faith, or arbitrary.
It is well established that a union, as an exclusive bargaining representative, has a statutory obligation to represent the interests of its members fairly, impartially, and in good faith, insuring that all employees are free from unfair, invidious treatment, hostility, discrimination, arbitrariness, or capriciousness.7 The duty of fair representation--which is "akin to the duty owed by other fiduciaries to their beneficiaries"--applies to a union's negotiations as well as its contract administration and other representational duties.
8 A union has a responsibility not to willfully mislead employees about its negotiations or grievance handling.9 With regard to the substance of negotiations,
Here, the Union violated its duty of fair representation when it told employees that all of their terms and conditions of employment would remain unchanged after transferring to
We further conclude that the Union's agreement to waive the employees' contractual rights to grieve the transfer and receive severance pay was not a breach of its duty of fair representation. The Union's primary objective in negotiating the transfer of employees from South Oaks to
/s/
J.L.S.
Footnotes:
1. "Article XXXV GRIEVANCE PROCEDURE. A grievance shall be defined as a dispute or complaint arising between the parties hereto under or out of this Agreement or the interpretation, application, performance, termination, or any alleged breach thereof, and shall be processed and disposed of in the following manner..
2. "Article XXII SEVERANCE PAY. Employees with one (1) or more years of bargaining unit seniority, who are permanently laid off, or who are temporarily laid off in excess of seven (7) days, shall receive severance pay at the rate of one (1) week's pay for each year of bargaining unit seniority, prorated, up to a maximum of four (4) weeks' pay, at his/her regular pay in effect at the time of such layoff, provided the amount of severance pay shall not exceed the regular pay the Employee would have earned during the period of layoff.
3. All remaining dates are in 2017 unless otherwise indicated.
4.
5. In one instance, an employee with higher seniority was transferred because the junior employee was banned from working at Broadlawn under an earlier agreement. In the other case, the more senior employee was transferred because post-sale there would be no job at South Oaks for whichwas eligible.
6.
7.
8 Air Line Pilots Ass'n, Int'l. v. O'Neill,
9 See, e.g.,
10
11 Air Line Pilots, 499 U.S. at 78.
12
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