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From Health Law Daily, April 8, 2013

Court upholds NLRB’s ruling as to unfair labor practices in refusal to hire

By Sheila Lynch-Afryl, JD, MA

The National Labor Relations Board (NLRB) did not err in finding the manager and operator of a nursing and rehabilitation center constituted a single entity that was jointly and severally liable for the unfair labor practices of one of them (Grane Health Care v National Labor Relations Board, April 5, 2013, Ambro, T). The evidence demonstrated that the two entities had common owners and were under common upper management. In addition, the NLRB’s conclusion that the entities violated sec. 8(a)(3) of the National Labor Relations Act (NLRA) by hiring several employees due to anti-union animus was supported by substantial evidence.

Purchase. In 2010, Grane Healthcare Co. (Grane) bought Laurel Crest Nursing and Rehabilitation Center (Laurel Crest) from Cambria County, Pennsylvania, and established a new entity, Cambria Care Center (Cambria Care), to serve as its operator. Cambria Care had two unions, both of which opposed Grane’s previous attempts to purchase Laurel Crest: Local Union No. 1305, which represented nonprofessional employees, and the Service Employees International Union (SEIU), which represented nurses. Grane hired the majority of Laurel Care’s employees to work at Cambria Care; however, it did not hire four of the five Local 1305 officers or an SEIU-represented employee who participated in SEIU’s rallies concerning the sale.

Complaint. Soon after Cambria Care took over the facility, Local 1305 and the SEIU filed unlawful labor practice charges against Grane and Cambria Care. The NLRB found that Grane and Cambria Care were a single employer and, thus, jointly and severally liable, and that the companies, as a single employer, violated the NLRA by failing to recognize and bargain with Local 1305 and by not hiring the five employees due to anti-union animus.

Single employer. When the NLRB finds that two nominally separate entities are a single employer, they are jointly and severally liable for unfair labor practices committed by either of them. Grane and Cambria Care argued that the NLRB erred in finding them a single employer because the evidence demonstrated that Grane did not control labor relations at the facility. The court rejected this argument because it was based on the testimony of Cambria Care’s administrator, which the NLRB found to be self-serving and overwhelmed by other evidence in the record. Furthermore, before the transfer, Grane made every important decision relating to establishing operations at the facility, and after the transfer the two companies had common owners and executive management.

Refusal to hire. The court affirmed the NLRB’s determination that Grane and Cambria Care violated sec. 8(a)(3) of the NLRA because there was a gross disproportion between the number of Local 1305 officers hired and the percentage of other employees hired, and their justifications for not hiring the five employees were mere pretext. The court concluded that the NLRB did not err in discrediting the testimony of two Grane representatives responsible for the no-hire decisions; while some evidence appeared to corroborate their testimony, the NLRB considered it and decided it did not make their testimony credible.

The case numbers are 11-4345 and 11-4357.

Attorneys: Richard J. Antonelli (Babst, Calland, Clements & Zomnir) for Grane Health Care, Ebensburg Care Center, LLC. Linda Dreeben, National Labor Relations Board, for National Labor Relations Board.

Companies: Grane Health Care; Ebensburg Care Center, LLC; National Labor Relations Board

MainStory: TopStory EmploymentNews DelawareNews NewJerseyNews PennsylvaniaNews

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