A hospital that failed to supply relevant information to the union representing its nurses concerning the effects of the Affordable Care Act (ACA) on the hospital’s business has committed unfair labor practices in its CBA negotiations with the union, NLRB Administrative Law Judge Jay Pollack has ruled. Sutter East Bay Hospitals d/b/a Sutter Delta Medical Center, Case No. 20-CA-093609 (July 23, 2013).

At the beginning of bargaining for a successor contract, Sutter stated in a presentation that the ACA was going to affect the hospital’s business and that the hospital had to bargain and make proposals accordingly. Sutter stated that the healthcare reform law would drastically reduce reimbursements from the government and that it needed to take steps to deliver healthcare at reduced payment rates. Sutter also made the same point in a letter to its nurses. Sutter went on to make numerous proposals for union concessions, but did not say they were based on the healthcare reform law. After a year in negotiations, Sutter declared an impasse, saying the Union’s refusal to respond to the last, best, and final offer was deemed a rejection of the offer. It then implemented various proposals in the offer. The Union filed unfair labor practices charges contending Sutter failed and refused to furnish the Union with information concerning the effects of the ACA, therefore, no legal impasse existed.

In finding that Sutter was obligated to furnish the Union with the requested information, the ALJ noted that the hospital never stated at the bargaining sessions that its proposals were based on the healthcare reform law. However, the ALJ explained that Sutter never withdrew its initial position that the healthcare reform law required drastic reductions in costs. Accordingly, the ALJ concluded that the hospital placed in issue the effects of the healthcare reform law, and therefore was obligated to furnish the Union with the requested information.

The ACA will have significant effects on employers nationwide. Employers in negotiations for successor contracts nevertheless should refrain from making explicit statements as to those effects and/or consider refusing to respond to union information requests concerning the same without first consulting with their labor counsel.