The Administrative Law Judge (ALJ) found that Covenant House New York (Covenant House) violated Sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA) by refusing to bargain in good faith with 1199SEIU United Healthcare Workers East (the Union) and by failing to provide the Union with necessary and relevant information. The ALJ also found that Covenant House threatened employees with discipline for engaging in union activities.
The Union was certified as the exclusive bargaining representative for a unit of Covenant House employees after a representation election. Following the certification, negotiations for a collective-bargaining agreement commenced. However, Covenant House subsequently raised objections regarding the inclusion of two employees, John Sentigar (Director of Development and Communications) and Gabrielle Perez (Program Compliance Coordinator), on the Union's bargaining committee. Covenant House argued that Sentigar and Perez were managerial employees and therefore excluded from the bargaining unit.
The ALJ meticulously examined the duties and responsibilities of Sentigar and Perez and concluded that they were not managerial, supervisory, or confidential employees within the meaning of the NLRA. The ALJ found that their roles involved executing established policies and procedures rather than formulating or exercising independent discretion in management policy or labor relations. The ALJ also rejected Covenant House's attempts to circumvent this evidentiary finding through "admissions" in its amended answer, emphasizing that the employer bears the burden of proving an employee's managerial or supervisory status, and that such issues could have and should have been litigated during the prior representation proceedings. The ALJ noted that Covenant House had previously agreed to the inclusion of these positions in the bargaining unit during the representation case.
The ALJ further found that Covenant House engaged in dilatory tactics and refused to bargain in good faith by repeatedly cancelling bargaining sessions, failing to make proposals, and conditioning further bargaining on the Union removing Sentigar and Perez from its committee. This refusal to bargain was considered a violation of Section 8(a)(5) and 8(a)(1) of the Act, as employers cannot dictate to a union who its representatives will be, absent compelling evidence of an irreparable conflict of interest. The ALJ also found that Covenant House unlawfully threatened Sentigar and Perez with discipline for their union activities, a violation of Section 8(a)(1) of the Act.
Moreover, the ALJ determined that Covenant House unlawfully refused to provide the Union with relevant and necessary information, including details about secondary employment policies, disciplinary actions, wage increases, and updated bargaining unit lists. This failure to provide information constituted a violation of Section 8(a)(5) and 8(a)(1).
Finally, the ALJ addressed Covenant House's procedural arguments regarding the National Labor Relations Board's (NLRB) investigative policies, finding them to be without merit. The ALJ also drew adverse inferences against Covenant House due to its non-compliance with a subpoena duces tecum and its attempt to introduce hearsay statements in lieu of testimony from its own management personnel.
As a remedy, the ALJ ordered Covenant House to cease and desist from its unlawful practices, bargain in good faith with the Union, provide the requested information, and post a notice to employees. The ALJ also ordered a specific bargaining schedule and monthly progress reports to the Regional Director to ensure compliance and prevent future dilatory tactics.
Significant Cases Cited
- NLRB v. Yeshiva University, 444 U.S. 672 (1980): This Supreme Court case established the standard for determining managerial status, focusing on whether employees formulate and effectuate management policies and make operative decisions.
- NLRB v. Katz, 369 U.S. 736 (1962): This Supreme Court decision clarified that good-faith bargaining requires a serious attempt to resolve differences and reach an agreement, and defined unlawful conduct as actions that reflect a mindset against agreement or directly obstruct the bargaining process.
- NLRB v. Insurance Agents’ Int’l Union, 361 U.S. 477 (1960): The Supreme Court held in this case that the NLRA does not compel any agreement or require parties to contract on specific terms, but it does obligate them to deal with each other in a serious attempt to resolve differences.
- Oakwood Healthcare, Inc., 348 NLRB 686 (2006): This NLRB decision elaborated on the criteria for supervisory status, emphasizing that the exercise of authority must involve independent judgment and not be merely routine or clerical.
- Wolf Creek Nuclear Operating Corp., 364 NLRB 1619 (2016): This NLRB case reinforced that managerial status requires the exercise of discretion independent of established employer policy or the prerogative to deviate from such policies.
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