06/15/10 10:05 FAX 860 263 6768 PROGRAM POLICY MNGT I~j 002

OFFICE OF PROGRAM POLICY

MUL TI-CLAIMANT DECISION MEMORANDUM

Date: June 15, 2010

To: Adjudications

From: Principal Attorney

Office of Program Policy

Subject: LABOR DISPUTE

SEIU Healthcare 1199 v. Birmingham Health Care

Claimant:
Barbara Hallaman Hill Top Health Center

Spectrum Health Care Derby

ER# 94-030-22

Park Place Health Center

Spectrum Healthcare Hartford, LLC
ER# 94-466-97

Laurel Hill Health Center

Spectrum Healthcare Winsted, LLC
ER# 94-466-96

Background
The subject claimant, who has been employed by Spectrum Health Care of Derby
(~employer) for eighteen years, is ~ member of the New England Health Care
Employees Union (~Union) Local 1999. The union represents approximately 400
employees. The last collective bargaiiing agreement between the parties ended on
March 15, 2009. The parties were in the process of negotiating a new contract when on
April 15, 2010 the union voted to go on strike and began picketing the employers
facilities. The labor dispute is currently ongoing.
Facts
The claimant became unemployed due to the labor dispute on April 15, 2010 and filed a
claim for unemployment benefits effechve April 11, 2010. A hearing was scheduled on
April 28, 2010 in the Hamden Call Ceiter. The hearing was attended by the claimant,
her union representative, Local 1199 Vice President Rebecca Riofrio, witnesses Beata
Fus and James Cooks, and Attorney Kevin Creane. The employer was represented by
David Kelly, Corporate Director of Human Resources, and Attorney Peter Dagostine.
The record establishes that the claimant did not report for duty the day the strike
commenced because she was aware of the picket lines and did not wish to cross them.
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New England Health Care Employees Union Local 1199 v. Spectrum Health Care
Labor Dispute
Page 2 of 4

She actively participated in picketing that day. The claimant was never informed by the
employer that no work was available for her. The employer had work available to
employees at the same terms and conditions of the expired contract. Some workers
returned to work at the same terms anc. conditions of the expired contract. Immediately
following the commencement of the stiike, the employer began hiring permanent and
temporary replacement workers, as staffing needs began to affect business. The
emp1oyer~s intent was to place returning workers, whose jobs were no longer open to
them, on a recall list. Employees would be re-hired from the list as vacancies become
available. At the April 28, 2010 hearing, the employer stated that if the strike ceased on
that date, most returning workers would be placed on the recall list, as their former
positions were occupied by replacement workers.

The week prior to the commencement of the strike, the employer distributed a
Scheduling Questionnaire which stated, in part, that the employer had received notice
of the Unions intent to strike, and requested employees to indicate if they intended to
report to work during the strike. The questionnaire further stated:
The purpose of this questionnaire is to ensure that we have the staff
necessary to provide care to our residents in the event of a strike. We
want to assure you that you s re free to make your own decision. No
reprisal will be taken against you whatever your decision may be.... If you
refuse to answer, we will not know whether you will be working during the
strike and will therefore have to schedule a replacement employee. If we
do not receive a response by ~i:00 PM on Friday, April 9, 2010, we will
assume that you will not be reporting for work and we will schedule a
replacement employee.

Many employees did not return the qi.estionnaires. The instant claimant did not return
the questionnaire because negotiation~3 were on-going and she felt there was a chance
to avert the strike.
Decision
Conn. Gen. Stat. Section 31-236(a)(3) provides in pertinent part that an individual shall
be ineligible for benefits:
during any week in which it is found by the Administrator that his total or
partial unemployment is due to the existence of a labor dispute other than a
lockout at the factory, establishrrent or other premises at which he is or has
been employed, provided the provision of this subsection shall not apply if it
is shown to the satisfaction of th administrator that (A) he is not participating
in or financing or directly intere~;ted in the labor dispute which caused the
unemployment, and (B) he does not belong to a trade, class or organization
or workers, members of which, immediately before the commencement of the
labor dispute, were employed et the premises at which the labor dispute
occurred, and are participating in or financing or directly interested in the
dispute; or (C) his unemploymen: is due to the existence of a lockout. A
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New England Health Care Employees Union Local 1199 v. Spectrum Health Care
Labor Dispute
Page 3 of 4

lockout exists whether or not such action is to obtain for the employer more
advantageous terms when (i) an employer fails to provide employment to his
employees with whom he is engaged in a labor dispute, either by physically
closing his plant or informing his ~mpIoyees that there will be no work until
the labor dispute has terminated, or (ii) an employer makes an
announcement that work will be available after the expiration of the existing
contract only under terms and conditions which are less favorable to the
employees than those current immediately prior to such announcement;
provided in either event the recognized or certified bargaining agent shall
have advised the employer that the employees with whom he is engaged in
the labor dispute are ready, able ~lnd willing to continue working pending the
negotiation of a new contract ~nder the terms and conditions current
immediately prior to such announcement.

One of the issues presented by this case is whether the striking employees were
permanently replaced and thus whether their unemployment ceased to be due to the
existence of a labor dispute other than a lockout, removing the disqualification imposed
by Conn. Gen. Stat. 31-236(a)(3). In this case, it is undisputed that a labor dispute
other than a lockout commenced on April 15, 2010. However, the employer immediately
began hiring replacement workers with the intent of placing returning strikers on a recall
list. In Jeifreys. et al. v. Eastern AirIin~ lnc~ Board Case No. I -BR-90 (3/9/92), the
Board ruled that unemployment originally due to a labor dispute subsequently became
due to the permanent replacement of strikers.
Underlying the existence of the labor dispute disqualification in the Unemployment
Compensation Act is a basic assumption that the employer/employee relationship
remains viable during a strike or labor dispute. Baugh v. United Telephone Co., 54
Ohio St. 2d 419, 377 N.E.2d 766 (197J3). However, the Act compels a consideration of
whether an individuals unemploymert is due to the labor dispute or whether the
employment relationship has been severed. The Board has long held that the
unemployment of striking employees who are permanently replaced during ~he course
of a labor dispute ceases to be due to the labor dispute as of the time of their
replacement. See Campo v. Patrick Outdoor Media, Board Case No. 332-85-BR
(3/12/85); Simons v. Colt lnd.. Inc., Board Case No. 1335-BR-87 (4/29/88).
As the employer has acknowledged, employees who attempt to return to their jobs with
the subject employer will be placed on a recall list. The employer also began to hire
replacement workers immediately upc n the commencement of the strike. in Allen v.
Review Board of Ind. Emp. Sec. Div., 494 N.E.2d 978 (md. App. 1986) the Indiana
Court of Appeals ruled that the hiring of replacement workers which prevented the
striking workers from assuming their former employment tasks resulted in a finding that
the employees had been permanently replaced, and that their unemployment was no
longer due to the existence of a labor dispute.
Moreover, a policy of finding permanently replaced workers to be disqualified from
receiving unemployment compensation benefits would result in the striking employees
losing both his job and his right to unemployment compensation benefits. Such a policy
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New England Health Care Employees Union Local 1199 v. Spectrum Health Care
Labor Dispute
Page 4 of 4

would provide an incentive for an employer to terminate its work force during any labor
action and would foster labor instability. See Johnson et al v. Circuit-Wise. Inc. 9500-
BR-91 (4/20/93).
Based on the foregoing, it is the conclusion of the Administrator that the claimants
involved in the subject labor action ha~ie become unemployed due to a labor dispute
other than a lockout. The Administrator further concludes that the employers decision to
hire permanent replacement workers severed the employment relationship, and thus the
claimants are eligible for benefits effecl:ive April 11, 2010, pursuant to Conn. Gen. Stat.
31-236(a)(3)(C). Claims for benefits filed by affected employees are approved.

This memorandum may be used as guidance for similarly situated claimants.

Any questions regarding application of this decision may be directed to this
office. In addition, any cases invohing different or unusual circumstances may
be foiwarded to this office. The I4aster claimants fact-finding report should
contain an M in the muIti-claiman~ indicator field. All other claims adjudicated
based on this memorandum should contain a Y in the multi-claimant indicator
field. In all cases, the Method of Hearing (MOH) field should be left blank.
Primary Contact: David Ricciuti

Labor Dispute Benefits approved April 11, 2010.

Distribution
Spectrum Health Care
dO ADP & Frick, Co
Box 66744
St Louis, MO 63166
SEIU Healthcare Local 1199
77 Huyshope Ave
Hartford, CT 06106
Attorney Kevin Creane
92 Cherry St
Milford, CT 06460
Attorney Peter Dagostine
Durant, Nichols et al.
1057 Broad St.
Bridgeport, CT 06604