Company Ordered to Bargain in Good Faith with Union

By Jeffrey Rhodes September 27, 2017
Company Ordered to Bargain in Good Faith with Union

An Ohio hospital must bargain with the union representing its nurses while the National Labor Relations Board (NLRB) rules on unfair labor practice charges filed by the union against the hospital, the U.S. District Court for the Northern District of Ohio ruled.

In the summer of 2012, the National Nurses Organizing Committee (the union) sought to organize the nurses working for DHSC LLC, doing business as Affinity Medical Center, a hospital in Massillon, Ohio. On Aug. 22, 2012, Affinity entered into an agreement with the union that representation proceedings would be conducted by the regional director of the NLRB. A representation election took place on Aug. 29, 2012, which the union won. The union was certified as the exclusive collective bargaining representative of all full-time and regular part-time registered nurses of Affinity at the Massillon facility.

After the union won the election, it claimed that Affinity would not engage in collective bargaining in violation of the National Labor Relations Act (NLRA).

[SHRM members-only HR Q&A: What information must employers supply to union representatives in the collective process?]

Among other things, the union claimed that Affinity did not provide it with information it requested about a decision by its parent company to spin off Affinity and other affiliated hospitals, unilaterally implemented a supplemental benefits program, terminated two nurses without bargaining with the union, and engaged in bad-faith bargaining (or "surface bargaining") to prevent reaching an agreement.

The union filed unfair labor practice charges with the NLRB under Sections 8(a)(1) and 8(a)(5) of the NLRA. These charges were referred to the regional director of Region 8 of the NLRB. While investigating the charges, the regional director filed a petition for an injunction under Section 10(j) of the NLRA with the U.S. District Court for the Northern District of Ohio. This injunction would have required Affinity to bargain with the union and provide requested information.

Section 10(j) gives federal district courts the power to issue a temporary restraining order to preserve a case's status quo while underlying administrative proceedings are pending. When deciding to issue an injunction, the district court must evaluate whether there is reasonable cause to believe that a violation of the NLRA has occurred. The court does not decide the facts, just whether the facts of the case are consistent with the board's legal theory. If so, the court must determine whether the requested injunctive relief is proper.

Affinity argued that the NLRB was incorrect in some of its factual assertions. With respect to the alleged failure to provide information, Affinity claimed that the union never asked it for information about the decision by its parent company, Community Health Systems Inc. (CHS), to spin off hospitals as a new entity. Rather, it only asked CHS for information. Similarly, Affinity argued that it had not engaged in surface bargaining; rather, it simply offered a comprehensive package proposal to the union that it was unwilling to change and that the union did not accept.

The court found, however, that after the union asked CHS questions about the spinoff, Affinity responded and said that the information was "on its way." This showed that Affinity understood that the information was requested from it and not its parent company.

Additionally, the court reasoned that, while the NLRA does not prohibit a company from hard bargaining, the totality of the circumstances showed reasonable cause to believe that surface bargaining had occurred. Among other things, Affinity's package proposal contained a broad management rights clause, which would give it unilateral control over terms and conditions of employment. The court also found that Affinity's other conduct, such as its alleged failure to bargain over its termination of two nurses and changes to its benefits package, provided sufficient evidence to show reasonable cause that it engaged in surface bargaining.

The court determined that issuing the requested injunction was proper because the union had suffered a decline in union meeting attendance and a loss of support. The court issued an injunction requiring Affinity to bargain in good faith with the union for not less than 24 hours per month and not less than six hours per session, to provide the union with information regarding the spinoff and the two nurses' terminations, to bargain with the union about the nurses' terminations, and to post the order throughout the hospital and read it to the nurses.

Binstock v. DHSC, LLC, N.D. Ohio, No. 5:16CV1060 (Sept. 5, 2017).

Professional Pointer: While the NLRA does not require a company to reach a collective bargaining agreement with a union, it does require that a company bargain with the union in good faith. As this case shows, a court can force a company to engage in many hours of meetings with the union, provide information to the union and consult with the union in advance before making important decisions.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.


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