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Even though wage increases decided before election petition, notifying nurses during critical period was objectionable

By David Stephanides, J.D.

An employer engaged in objectionable election conduct during the critical period by announcing to its geriatric nursing assistants (GNAs) the amount of their hourly wage increase or that they would be receiving a lump-sum bonus payment, the NLRB ruled in a 2-1 decision. Further, the employer’s subsequent issuance during the critical period of paychecks reflecting those payments was also objectionable. Member Miscimarra concurred in part and dissented in part (Manor Care—Ruxton, MD, LLC dba ManorCare Health Services, April 30, 2015).

A “market adjustment rate.” Two days before the start of the critical period, on June 24, 2013, the employer approved a “market adjustment” wage increase for 65 of its GNAs, the employees the union sought to represent. By June 25, the employer had notified at least 25 GNAs that they would receive an unspecified increase under the adjustment. On June 26, the union filed its petition. Beginning on July 7, the employer distributed to each GNA a letter specifying the specific increase, and, around the same time, it also informed 11 GNAs that they would receive a lump-sum bonus payment instead of an hourly increase because their hourly rate was already above the market rate. Finally, on July 10, the employer included in each GNA’s paycheck the specific amount of their increase or lump-sum bonus payment.

Excepting to the hearing officer’s finding of unobjectionable conduct, the union contended that a significant number of GNAs were informed about their increase on or after July 7, when they received their letters. Although it was unclear whether the employer notified all 65 GNAs prior to June 26 (the start of critical period) that they would receive an unspecified increase, it was undisputed that during the critical period, the employer distributed a letter to each GNA announcing the amount of their increase. It was also during the critical period that the employer first announced to 11 of its GNAs that they would be receiving a lump-sum bonus payment. Finally, the majority noted that it was during the critical period that the employer first issued each GNA a paycheck that included either their increase or lump-sum bonus payment.

A matter of timing. The majority stressed that even if the employer determined the amount of each employee’s increase before the petition was filed, it did not inform employees of those amounts until after the critical period commenced. Moreover, the employer did not announce that GNAs with wages above the market rate would receive lump-sum bonuses until after the petition was filed. The timing of these events had a reasonable tendency to interfere with employees’ freedom of choice in the election, the majority concluded.

Partial dissent. Member Miscimarra would find that the increases should not warrant overturning the election because they were both announced and effective prior to the critical period. He did not believe the increases were converted into critical period conduct merely because, after the petition was filed, employees learned of their individual increase amounts. “It is undisputed that each employee’s wage increase comported with the amount the Employer had determined before the petition was filed.” Noting that this same issue was presented in Kokomo Tube Co., 280 NLRB 357 (1986), where “the wage increase was both announced and effective before the petition was filed,” and where the Board held that under the longstanding Ideal Electric rule, 134 NLRB 1275 (1961), the increase could not serve as a basis to set aside the election. The majority, however, disagreed; there is objective interference with employee free choice when an employer announces the amount of a wage increase during the critical period. “[E]mployees will reasonably understand the employer’s announcement as demonstrating that “the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged.”