New York Rehab Facility Illegally Surveilled Unionizing Workers

The federal labor board correctly found that a New York-based rehabilitation facility illegally surveilled workers during a union drive through a “Manager on Duty” program and wrongly fired a supervisor over her refusal to participate, a federal appeals court ruled.

The Northeast Center for Rehabilitation and Brain Injury violated the National Labor Relations Act by instituting the program, under which managers would rotate around the floors and purportedly assist staff, the US Court of Appeals for the District of Columbia held Friday.

Not only was the program a major change from prior practice, but facility leadership “admitted the program’s purpose was to uncover employees’ union sentiments,” the court said.

Northeast also violated the NLRA when it suspended and fired two employees for their union activities—one of whom was coercively interrogated—and when it fired a manager over her refusal to commit unlawful surveillance, the appeals court ruled.

But the court overturned the National Labor Relations Board’s finding that Northeast’s directive that managers pass out flyers on the company’s union stance violated the law. The flyers were protected speech, Judge Neomi Rao wrote for the D.C. Circuit.

“Distributing informational flyers and observing employee reactions, however, do not constitute unlawful surveillance,” she said. “When a manager shares a flyer with an employee and engages in non-coercive ‘one-on-one persuasion,’ that is protected speech under the NLRA,” Rao said.

D.C. Circuit precedent also recognizes that “an employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed,” the ruling said.

Judges Gregory Katsas and Douglas Ginsburg joined the decision.

Hinman Howard and Kattell LLP represented the company. NLRB attorneys represented the board.

The case is NCRNC, LLC v. NLRB, D.C. Cir., No. 22-1332, 3/1/24.