A decision this week by the U.S. Court of Appeals for the Ninth Circuit presents guidance on the type of activity unionized employees may engage in without providing the requisite 10 days' notice. Such activity has been the source of debate.

On August 3, 2009, the court affirmed a National Labor Relations Board decision in SEIU, United Healthcare Workers-West v. National Labor Relations Board, holding that SEIU, United Healthcare Workers-West had violated the National Labor Relations Act when its members failed to give the requisite 10-day notice before collectively refusing to work overtime.

Only four days after presenting a petition in which the union called for a one-week refusal to work overtime, the California Pacific Medical Center was unable to obtain a single volunteer to work overtime during a week. The hospital filed unfair labor practice charges, claiming that the union violated section 8(g) of the act by failing to provide timely notice of its intention to engage in a concerted refusal to work.

The union contended that it did not engage in a refusal to work because, pursuant to the collective bargaining agreement between the parties, overtime was not mandatory. The Ninth Circuit agreed that it would not necessarily be a concerted refusal to work if all employees, independently, declined to work overtime but found that in this case, the union had orchestrated its members to act on a concerted basis.

The union's secondary argument was that it could not give effective notice of a concerted refusal to work because it would not know at the time it gave notice whether the hospital would need employees to work overtime 10 days in the future. The Ninth Circuit likewise rejected that argument, finding that the Union could have given notice ten days in advance of when it intended to begin declining overtime and followed through on that plan.

The union, therefore, was obligated to provide the 10-day notice.


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