nursing home labor decision

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06/15/10 10:05 FAX 860 263 6768 PROGRAM POLICY MNGT I~j 002

OFFICE OF PROGRAM POLICYMUL TI-CLAIMANT DECISION MEMORANDUM

Date: June 15 , 2010To:From: Principal AttorneyOffice of Program PolicySubject: LABOR DISPUTE

SEIU Healthcare 1199 v. Birmingham Health CareClaimant:Barbara Hallaman Hill Top Health Center

Spectrum Health Care DerbyER# 94-030-22Park Place Health CenterSpectrum Healthcare Hartford, LLCER# 94-466-97Laurel Hill Health CenterSpectrum Healthcare Winsted, LLCER# 94-466-96

BackgroundThe sub ject c laiman t, who has been employed by Spectrum Health Care of Derby(~employer) for eighteen years, is ~ member of the New England Health CareEmployees Union (~Union) Local 1999. The union represents approximately 400employees. The last collective bargaiiing agreement between the parties ended onMarch 15 , 2009. The parties were in the process of negotiating a new contract when onApril 15 , 2010 the union voted to go on strike and began picketing the employersfacilit ies. The labor dispute is currently ongoing.FactsThe claimant became unemployed due to the labor dispute on April 15 , 2010 and filed aclaim for unemployment benefits effechve April 11 , 2010. A hearing was scheduled onApril 28, 2010 in the Hamden Call Ceiter. The hearing was attended by the claimant,her union representative, Local 1199 Vice President Rebecca Riofrio, witnesses BeataFus and James Cooks, and Attorney Kevin Creane. The employer was represented byDavid Kelly, Corporate Director of Human Resources, and Attorney Peter Dagostine.The record establishes that the claimant did not report for duty the day the strikecommenced because she was aware of the picket lines and did not wish to cross them.

Adjudications


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New England Health Care Employees Union Local 1199 v. Spectrum Health CareLabor DisputePage 2 of 4She actively participated in picketing that day. The claimant was never informed by theemployer that no work was available for her. The employer had work available toemployees at the same terms and conditions of the expired contract. Some workersreturned to work at the same terms anc. conditions of the expired contract. Immediatelyfollowing the commencement of the s tiike, the employer began hiring permanent andtemporary replacement workers, as staffing needs began to affect business. Theemp1oyer~s in tent was to place returning workers, whose jobs were no longer open tothem, on a recall list. Employees would be re-hired from the l ist as vacancies becomeavailable. At the April 28, 2010 hearing, the employer stated that if the strike ceased onthat date, most returning workers would be placed on the recall list, as their formerpositions were occupied by replacement workers.The week prior to the commencement of the strike, the employer distributed aScheduling Questionnaire which stated, in part, that the employer had received noticeof the Unions intent to strike, and requested employees to indicate if they intended toreport to work during the strike. The questionnaire further stated:

The purpose of this questionnaire is to ensure that we have the staffnecessary to provide care to our residents in the event of a strike. Wewant to assure you that you s re free to make your own decision. Noreprisal will be taken against you whatever your decision may be.... If yourefuse to answer, we will not know whether you will be working during thestrike and will therefore have to schedule a replacement employee. If wedo not receive a response by ~i:00 PM on Friday, April 9, 2010, we willassume that you will not be reporting for work and we will schedule areplacement employee.Many employees did not return the qi.estionnaires. The instant claimant did not returnthe questionnaire because negotiation~3 were on-going and she felt there was a chanceto avert the strike.DecisionConn. Gen. Stat. Section 31-236(a)(3) provides in pertinent part that an individual shallbe ineligible for benefits:

dur ing any week in which it is found by the Administrator that his total orpartial unemployment is due to the existence of a labor dispute other than alockout at the factory, establishrrent or other premises at which he is or hasbeen employed, provided the provision of this subsection shall not apply if itis shown to the satisfaction of th administrator that (A) he is not participatingin or financing or directly intere~;ted in the labor dispute which caused theunemployment, and (B) he does not belong to a trade, class or organizationor workers, members of which, immediately before the commencement of thelabor dispute, were employed et the premises at which the labor disputeoccurred, and are participating in or financing or directly interested in thedispute; or (C) his unemploymen: is due to the existence of a lockout. A


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lockout exists whether or not such action is to obtain for the employer moreadvantageous terms when (i) an employer fails to provide employment to hisemployees with whom he is engaged in a labor dispute, either by physicallyclosing his plant or informing his ~mpIoyees that there will be no work untilthe labor dispute has terminated, or (ii) an employer makes anannouncement that work will be available after the expiration of the existingcontract only under terms and conditions which are less favorable to theemployees than those current immediately prior to such announcement;provided in either event the recognized or certified bargaining agent shallhave advised the employer that the employees with whom he is engaged inthe labor dispute are ready, able ~lnd willing to continue working pending thenegotiation of a new contract ~nder the terms and conditions currentimmediately prior to such announcement.

One of the issues presented by this case is whether the striking employees werepermanently replaced and thus whether their unemployment ceased to be due to theexistence of a labor dispute other than a lockout, removing the disqualification imposedby Conn. Gen. Stat. 31-236(a)(3). In this case, it is undisputed that a labor disputeother than a lockout commenced on April 15 , 2010. However, the employer immediatelybegan hiring replacement workers with the intent of placing returning strikers on a recalllist. In Jeifreys. et al. v. Eastern AirIin~ lnc~ Board Case No. I -BR-90 (3/9/92), theBoard ruled that unemployment originally due to a labor dispute subsequently becamedue to the permanent replacement of strikers.Underlying the existence of the labor dispute disqualification in the UnemploymentCompensation Act is a basic assumpt ion that the employer/employee relationshipremains viable during a strike or labor dispute. Baugh v. United Telephone Co., 54Ohio St. 2d 419, 377 N.E.2d 766 (197J3). However, the Act compels a consideration ofwhether an individuals unemploymert is due to the labor dispute or whether theemployment relat ionship has been severed. The Board has long held that theunemployment of striking employees who are permanently replaced during ~he courseof a labor dispute ceases to be due to the labor dispute as of the time of theirreplacement. See Campo v. Patrick Outdoor Media, Board Case No. 332-85-BR(3/12/85); Simons v. Colt lnd.. Inc., Board Case No. 1335-BR-87 (4/29/88).As the employer has acknowledged, employees who attempt to return to their jobs withthe subject employer will be placed on a recall list. The employer also began to hirereplacement workers immediately upc n the commencement of the strike. in Allen v.Review Board of Ind. Emp. Sec. Div., 494 N.E.2d 978 (md. App. 1986) the IndianaCourt of Appeals ruled that the hiring of replacement workers which prevented thestriking workers from assuming their former employment tasks resulted in a finding thatthe employees had been permanently replaced, and that their unemployment was nolonger due to the existence of a labor dispute.Moreover, a policy of finding permanently replaced workers to be disqualified fromreceiving unemployment compensation benefits would result in the striking employeeslosing both his job and his right to unemployment compensation benefits. Such a policy


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would provide an incentive for an employer to terminate its work force during any laboraction and would foster labor instability. See Johnson et al v. Circuit-Wise. Inc. 9500-BR-91 (4/20/93).Based on the foregoing, it is the conclusion of the Administrator that the claimantsinvolved in the subject labor action ha~ie become unemployed due to a labor disputeother than a lockout. The Administrator further concludes that the employers decision tohire permanent replacement workers severed the employment relationship, and thus theclaimants are eligible for benefits effecl:ive April 11 , 2010, pursuant to Conn. Gen. Stat.31-236(a)(3)(C). Claims for benefits filed by affected employees are approved.This memorandum may be used as guidance for similarly situated claimants.Any quest ions regarding appl ication of th is dec ision may be directed to thisoffice. In addition, any cases invohing different or unusual circumstances maybe foiwarded to this office. The I4aster claimants fact-finding repor t shouldcontain an M in the muIti-claiman~ indicator field. All other claims adjudicatedbased on this memorandum should contain a Y in the multi-claimant indicatorfield. In all cases, the Method ofHearing (MOH) field should be left blank.

Primary Contact: David RicciutiLabor Dispute Benefits approved April 11, 2010.

DistributionSpectrum Health CaredO ADP & Frick, CoBox 66744St Louis, MO 63166SEIU Healthcare Local 119977 Huyshope AveHartford, CT 06106Attorney Kevin Creane92 Cherry StMilford, CT 06460Attorney Peter DagostineDurant, Nichols et al.1057 Broad St.Bridgeport, CT 06604

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