NLRB Unanimously Tells Employer “Don’t Take Away That Sick Leave!”
We all know that employers make mistakes – whether it is on purpose or by accident. Some employers have the gall to try to take advantage of their mistakes, like Prime Healthcare recently did when it unilaterally rescinded a sick leave benefit for employees represented by SEIU, United Healthcare Workers – West. In a recent decision, the NLRB ruled 3 to 0 to make employers more accountable.
In its unanimous decision, the NLRB ruled that a successor employer is generally free to set the initial terms and conditions of employment, but once it exercises that right, it is not free to alter those terms and conditions without giving the Union notice and an opportunity to bargain – even if it “mistakenly” included a benefit that was not part of its intended initial terms and conditions of employment.
In this case, after Prime Healthcare purchased Garden Grove Hospital and Medical Center from Tenet Healthcare and retained a majority of Tenet’s unit employees, it set the initial terms and conditions of employment. At the time it set the initial terms and conditions, Prime Healthcare failed to mention that it would not include a reserve sick leave benefit that employees had received under the predecessor employer. The reserve sick leave benefit allowed employees to accrue sick leave for every pay period, so that it could be used when employees became ill.
For nearly nine months from the date that Prime set the initial terms and conditions of employment, employees continued to accrue their reserve sick leave benefit. According to Prime Healthcare, this was simply a “mistake” which was “due to clerical errors”; nine months after it discovered its “mistake,” Prime Healthcare notified employees – but not the Union – that the reserve sick leave benefit would be rescinded. Finding that the reserve sick leave was a mandatory subject, the NLRB found that Prime Healthcare unilaterally changed a mandatory subject of bargaining without bargaining with the Union; it ordered Prime Healthcare to restore employees’ reserve sick leave benefit and credit employees with such additional time as they should accrue until the employer complies with the Board’s order.
This is a significant decision for workers whose facility is bought by a new employer, and such workers should immediately inform their Union of the sale and of any change the new employer makes in wages, hours, or terms or conditions of employment.