Participants in a program that provides employment for disabled janitors in Baltimore County may remain unionized and bargain collectively, a federal appeals court ruled last week in upholding a decision by the National Labor Relations Board.
The workers provided “substantial evidence” to the NLRB that they were employees under federal labor law and not merely participants in a rehabilitative program provided through Sinai Hospital of Baltimore Inc., the 4th U.S. Circuit Court of Appeals stated in its published 3-0 decision.
This evidence of employment included the disabled workers’ status as equals with their able-bodied colleagues, whom they worked alongside during eight-hour shifts, the 4th Circuit stated.
Like their colleagues, disabled workers in the hospital’s Vocational Services Program could be fired for poor work performance, taking unauthorized breaks or failing to properly store supplies, the appeals court added.
The 4th Circuit’s decision was a defeat for Sinai Hospital, which had argued that participants in its VSP were not employees permitted to unionize under federal law but engaged in a “primarily rehabilitative” program, which does not allow for collective bargaining.
Sinai Hospital’s now unionized VSP participants work at the Social Security Administration facility in Baltimore County.
The NLRB had found — and the 4th Circuit agreed — that these workers were in a “typically industrial,” employee-employer relationship with the people they reported to as defined in the National Labor Relations Act and the board’s regulations.
The VSP provided “some rehabilitative and counseling services” for the disabled workers but that did not render the program “primarily rehabilitative,” the 4th Circuit ruled.
“The board first found that the terms and conditions of employment for VSP’s disabled and nondisabled janitors are ‘virtually indistinguishable,’ thereby suggesting a typically industrial relationship” under NLRB precedent, Judge Robert B. King wrote for the 4th Circuit.
“The board also relied on evidence indicating that all janitors at the SSA facility – regardless of disability status – are assigned to shifts of the same length; receive equivalent wages and benefits; have the same job description; and are afforded equal amounts of break time,” King added. “The board also observed that a 90-day probationary period applies to all newly hired janitors and that VSP has demonstrated a ‘ready willingness’ to discharge any janitor rendering unsatisfactory performance during that probationary period.”
Judges Diana Gribbon Motz and Paul V. Niemeyer joined King’s opinion upholding NLRB’s union certification.
Niemeyer also wrote separately to state that VSP and similar programs carry a “strong presumption” that their participants are in a “primarily rehabilitative” situation because they are not engaged in a competitive hiring process and thus not entitled to collective bargaining.
But Sinai Hospital never asked the 4th Circuit to presume the VSP was primarily concerned with rehabilitation, Niemeyer added.
“Had VSP argued for such a categorical presumption before us, I would have welcomed the discussion and engaged both parties on that point,” Niemeyer wrote.
“Instead, however, VSP focused its briefing on whether substantial evidence supported specific factual findings made by the board,” he added. “Because the record includes substantial evidence to support these findings, albeit narrow in scope, I concur in the opinion of Judge King, which ably demonstrates this.”
Sinai Hospital declined to comment on the 4th Circuit’s decision or on any plans to appeal. The hospital is represented by attorney Eric Paltell of Kollman & Saucier PA in Baltimore.
James R. Rosenberg, attorney for the United Healthcare Workers East union, also declined to comment on the 4th Circuit’s decision. Rosenberg is with Abato, Rubenstein & Abato PA in Baltimore.
As of November 2019, 35 of the 44 janitors at the SSA facility were classified as severely disabled under the federal Javits-Wagner-O’Day Act, which fosters employment for disabled workers at federal facilities.
The case arose after VSP workers at the SSA facility voted 28-13 in 2019 to join United Healthcare Workers East, a vote the NLRB certified in May 2020, according to the 4th Circuit’s decision.
When VSP declined to recognize the janitors’ bargaining representative, the union filed an unfair labor practice charge with the board in September 2020.
In May 2021, the board ruled for the union and ordered VSP to bargain with it as the workers’ representative.
VSP then sought review by the 4th Circuit.
The 4th Circuit rendered its decision in Sinai Hospital of Baltimore Inc. d/b/a VSP v. National Labor Relations Board and 1199 SIEU United Healthcare Workers East, intervenor, No. 21-1683.