A Missouri nursing home didn’t violate federal labor law when it fired five union supporters, the National Labor Relations Board ruled in affirming findings that at least one of the workers was sleeping on the job.
Riverview Care Center in St. Louis had faced allegations of union-busting after firing a housekeeper who was allegedly attempting to organize staff as the facility battled COVID and significant staff and leadership turnover in mid-2020. But the board affirmed an administrative law judge’s previous ruling, which found no proof that the firing administrator knew of the potential union activity.
The 130-bed facility, which had 70 to 80 residents at the time of the firings, closed at the end of February. The SEIU officially represented 21 workers there by the time residents were moved out. Last month, union leaders embroiled in a fresh controversy with the home’s owners after only five of those unionized workers were offered jobs at a sister facility.
It was SEIU Healthcare MO and KS, a Division of SEIU Healthcare Illinois/Indiana, that brought the original labor case. That was decided by the NLRB April 4 after more than two and a half years of procedural matters.
The union alleged that five employees were discriminated against in separate firings because they had each engaged in one or more of the following types of protected union activity: signing union cards, soliciting others to sign union cards, attending one or more union meetings or helping to organize union meetings.
CNA Devora Harris was a lead organizer of what would become the facility’s union, arranging meetings at a nearby park and passing out membership cards. Her son Louis Brown, a housekeeper; CNA Lana Edwards; and medtech Danyaile Taylor attended an Aug. 21 meeting at which a union representative announced that enough workers had signed authorization cards to file for a representative election. At the same meeting, attendees told Jones that another CNA, Mikayla Wilson, also planned to sign up.
The union officially filed a petition to represent the staff on Aug. 28. By the time, five of the early would-be union members had been fired.
But the Labor Board affirmed that an administrative law judge could find no proof that Riverview leaders had knowledge of the employees’ union activities or that they “would have borne animosity towards those activities had it known about them.”
“There is no credible record evidence that any supervisor or manager witnessed the alleged discriminatees engaging in union activities or was ever told about such activities by the alleged discriminatees,” wrote judge Paul Bogas. “Nor is there evidence that a supervisor or manager said anything indicating knowledge that Harris, Brown, Edwards, Taylor or Wilson supported a union.”
Dismissals dissected
Harris was fired for sleeping on the job during an overnight shift, an infraction that was caught on video, the board confirmed. Brown was fired for non-performance of job duties and insubordination.
Another three members of the caregiving staff, Edwards, Taylor and Wilson, were relieved after taking a simultaneous lunch break without clocking out, leaving 32 residents in the care of one aide during lunch. At the time, residents were being served in their rooms due to COVID protocols and required additional assistance, the judge noted.
Borgas noted the evidence of timing “appears, at first blush, rather strong.”
“The Respondent discharged five union supporters over the course of the 7 days after the August 21 meeting at which Jones told employees that the Union had enough signed cards — from at least 18 employees — to petition for a representation election,” he wrote.
But in addition to a lack of hard evidence, the judge said the facility’s COVID-era turnover rate also influenced him.
“At a facility where, as here, employees were losing or abandoning their jobs on almost a daily basis, the fact that the five terminations at-issue in this case took place during a 7-day period is less suspicious than it might otherwise be,” he wrote.
