New England Health Care Employees Union v. NLRB

The New England Health Care Employees Union (the Union) (plaintiff) had members that went on strike at Avery Heights (Avery), a nursing home and assisted-living facility for 500 residents. During the strike, Avery began secretly hiring permanent employees to replace the striking workers. When the Union learned that Avery was hiring permanent replacement workers, it offered to immediately and unconditionally return to work. Avery recalled striking workers to positions that had not been filled by replacement employees, eventually rehiring approximately 80 striking workers. The Union alleged that Avery had violated the National Labor Relations Act by not reinstating all the striking workers. Though employers are allowed to hire replacement workers in order to withstand a strike, an administrative-law judge (ALJ) found that Avery had an unlawful motive—to break up the Union—when it hired the replacement workers in secret. The ALJ supported its decision by pointing to additional evidence in which Avery’s management hinted at hoping to break the Union by replacing Union workers with employees who were not Union members. The National Labor Relations Board (NLRB) (defendant) reversed the ALJ and found that Avery did not have an unlawful motive when it hired the replacement workers. The NLRB reasoned that Avery was not required to notify the Union that it was hiring replacement workers. Because Avery had no duty to disclose its hiring, the NLRB reasoned that an unlawful motive could not be inferred from Avery’s secrecy. The Union appealed, arguing that the NLRB’s decision was arbitrary and capricious.