Richard Ahearn: An NLRB Director and a Tale of Two Struggles
When EGT, an international corporate behemoth, threatened to break their union in Longview, Washington, members of the International Longshore and Warehouse Union (ILWU) and their friends from the community organized a massive demonstration, sat down on the tracks and stopped a train. They did it more than once. The nation’s workers took heart at this bold action.
Richard Ahearn, Regional Director of the National Labor Relations Board (NLRB) in Seattle, didn’t see it that way. He acted instantly to seek an emergency injunction to block this “unlawful” solidarity. Ahearn is further pressing an unfair labor practices complaint against the union. Ahearn wanted swift justice and acted immediately when he saw the union as the lawbreaker.
But Ahearn, at the time the Regional Director of the NLRB in Cincinnati, showed no such concern for law and order when an outspoken union nurse in Kentucky was fired on the ludicrous charge of flushing an intravenous line with saline without a doctor’s order. Normal saline is an inert substance, not a medication, requires no physician’s order, and is not required to be charted. It is used many times a day to clear or check intravenous lines. Ahearn didn’t act with alacrity to help the nurse. In fact, he did all in his power to help the company get away with the termination of a leading union advocate as the hospital sought to strike fear into the hearts of those struggling to build their union.
Jane Gentry, RN, was fired from Louisville’s Norton Audubon Hospital where she had worked for 18 years. She had an excellent record and worked in the hospital’s top notch open heart unit. Gentry was the Legislative Director of the Nurses Professional Organization (NPO). She and her colleagues had been fighting for a decade to win their union, first against Humana which owned Audubon, then against Columbia/HCA, the hospital company that paid $1.7 billion in fines for Medicare fraud when Florida’s governor, Rick Scott, headed it up. Then Norton Healthcare purchased Audubon Hospital and continued the virulent anti-union campaign.
Jane Gentry was one of the casualties of this war on the union. She had been unlawfully suspended for union activity in 1997. That NLRB case came to a conclusion in 1999 when Audubon Hospital was forced to post a legal notice stating that they would remove the suspension and cease unlawful anti-union activities. Showing their contempt for labor law, the hospital posted the notice on July 12, 1999, and then they fired Gentry that very same day. The next day the hospital made a scandalously erroneous report against Gentry to the Kentucky Board of Nursing (KBN) in an attempt to have her nursing license taken away. They didn’t just fire her. They tried to end her ability to work anywhere.
The NPO filed unfair labor practice charges at the NLRB asserting that the firing and the report to the Board of Nursing were both in retaliation for union activity.
What did the law’s standard bearer, Richard Ahearn, have to say about the hospital’s contempt for the law? Ahearn first told the NPO that he couldn’t see any evidence of “animus.” That’s one of the elements that the labor law requires to be present in order to find that an employer broke the law. It seems a silly step to go through, since 99% of workers could attest to their employer’s animus for unions. Even after the union submitted a list of 55 documented instances, Ahearn was unable to see any animus.
Ahearn said there was “insufficient evidence” to establish a “nexus” between union activity and the discharge. After four months of pensive consideration, he dismissed the union’s charges against the hospital.
The hospital fired Gentry, denied her unemployment compensation, and attacked her nursing license. This was disaster for the NPO. This feisty union had been fighting in creative ways to protect its activists. The union had reversed several firings of nurses by demonstrations. With lots of hospital workers standing up and bold public actions, the community sided with the union. The corporation often had to back off. But this firing of Gentry coupled with the attack on her license made it difficult to show the solidarity needed. If the hospital could get away with firing a leading union advocate and an excellent nurse, how would it be possible for others to take a stand? Here was a case of retaliation so obvious that no nurse or hospital worker missed the message.
When the NPO won Gentry’s license case at the Board of Nursing, the NPO filed a motion with the NLRB in Washington DC asking for reconsideration of Ahearn’s refusal to issue complaint.
In a rare action, the NLRB General Counsel granted the union’s motion to reconsider, overturned Ahearn, and ordered him to issue a complaint against the hospital for the firing of Gentry and for acting against her nursing license.
That was August of 2000—one tough year and a month since Gentry was fired. Ahearn was not happy. The NPO was a fighting union but with very few resources, no paid staff, and no lawyers. The union was committed to protect those who had stuck their necks out in the struggle. NPO members researched the labor law, wrote the motions, filed the appeals, composed the briefs, found the witnesses, and prevailed against Columbia Law School graduate Ahearn when they persuaded the General Counsel of the NLRB to overturn Ahearn.
But the fight was just beginning. When the Kentucky Board of Nursing made the strange move of reversing their “not guilty” decision on Gentry’s license, Ahearn used this excuse to further delay the NLRB hearing. Delays are worse for workers than for the corporations. Few workers have the economic resources to sustain a long battle.
The NLRB is supposed to act independently to enforce labor law, and the decision of any other court or agency should not determine its position. But Ahearn took advantage of this reversal to postpone Gentry’s hearing.
Ultimately, the nursing license case went all the way to the Kentucky Supreme Court with the union winning the battle. Gentry’s license was cleared of all charges. Even if Gentry had been found guilty, the proposal for discipline was merely that she work under probation for a period of time. She would still have been able to perform her job at Audubon, and many Audubon nurses worked while on a probated license.
Based on the nursing license issue, Ahearn appealed to his Washington office in an attempt to get the NLRB to reverse their push for full reinstatement for Gentry. He succeeded only in delaying the NLRB hearing.
Members of the International Longshore and Warehouse Union and their supporters who stopped the trains are still waiting for the results of a suit concerning their contract with the Port of Longview. Such a legal detail has not deterred Ahearn from proceeding with his action against the unionists. But the legal proceedings in Gentry’s case were the excuse Ahearn used to delay the hearing.
It was not until September of 2002, three years and two months from the date that Gentry was fired, that Ahearn finally allowed this case to go to trial. It was an outrageous delay. When the Circuit Court of Appeals ruled unanimously in Gentry’s favor on the license, Ahearn ran out of excuses.
At the NLRB hearing, the hospital was in a jam. With the subpoenaed disciplinary records laid out in the open, the hospital had no logical way to explain why Gentry was fired for flushing an intravenous line with salt water without charting it, while others had committed patient-endangering acts with no such penalty.
How to explain this? The hospital’s Vice President of Nursing came up with a laughable answer. She testified that “harm” or “potential harm” to the patient was not even considered when making decisions about discipline. She said that when a nurse diverted narcotics to his personal use and was not fired he was acting within the scope of his nursing license, while Gentry’s harmless saline flush was outside the scope of her license.
In one of the cases brought out in the hearing, a nurse who was not fired tried to administer 90 units of insulin to the wrong patient. The judge in the NLRB case, having some experience because of his diabetic son, asked, “But again, if you do that, you could kill somebody.” The company’s top nursing official testified, “Yes, sir, yes, sir, we try to walk through what is the appropriate action to take from a discipline type of perspective. I don’t necessarily take into consideration the potential outcome to the patient.” That’s a shocking commentary on what this hospital corporation thinks is important.
In his decision the NLRB judge deemed the vice president of nursing not to be a credible witness. The judge ruled for the NPO and Gentry. The hospital appealed all the way to the Sixth Circuit Court. The NPO won there. Six years after the firing, Gentry was awarded $400,000 in compensation and her license was cleared. Most of that six year delay can be attributed to Richard Ahearn.
Ahearn as an official of the NLRB was charged with protecting workers. Yet he acted at every juncture on behalf of the corporation rather than the workers and is still doing so at his new post in Seattle where his complaint against the ILWU is scheduled to be heard shortly.
In the meantime, Longview ILWU workers are faced with the threat of non union shipments of grain to begin sometime in January 2012 in violation of the Port of Longview’s longstanding contract with the ILWU. They will not allow this to happen and are calling on others to stand with them.
When corporate powers are running out of control at break neck speed destroying workers lives, their jobs, pensions, and hope for a decent future, it’s time to stop the train.
Those who would like to express their solidarity can send messages and make donations to: ILWU Local 21, 617-14th Avenue, Longview, WA 98632, Dan Coffman, President, Shelly Porter, Sec.-Treas., phone: 360.423.0950, fax: 360.423.5498, email: email@example.com
Kay Tillow, All Unions Committee for Single Payer Health Care–HR 676