In a decision highlighting the importance of bargaining in good faith, the National Labor Relations Board recently held that a California Hospital must reimburse the union’s negotiating costs as a remedy for the hospital’s post-election misconduct. NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Harry I. Johnson adopted and expanded the Administrative Law Judge’s (ALJ) decision holding that Hospital of Barstow, Inc. violated the National Labor Relations Act by making unilateral changes to nurse training requirements and by setting preconditions to bargaining.
The decision stems from an unfair labor practice charge filed by the California Nurses Association/National Nurses Organizing Committee (CNA/NNOC) in September 2012, three months after the union was first certified in June 2012. Shortly after certification, the union created an “assignment despite objection” (ADO) form for nurses to document assignments or situations they feel are not safe for the patient or may compromise the nurse’s license and provided the forms to the hospital’s nurses. Before completing the ADO form, the nurse was to first verbally notify the supervisor about the issue and give the supervisor a chance to address the issue. Once the form is completed, the nurse gives a copy to the supervisor and a copy to the union. There is a line on the form for the supervisor’s response.
The hospital objected to the ADO form because the form conflicted with the hospital’s Event and Government Reporting Policy, which ensures policies are in place to improve patient care and safety. Pursuant to that policy, employees are instructed to fill out an event report form, also referred to as an incident report, if something noteworthy occurs on their shift. Employees are trained on the policy and the event reporting system. If a nurse believes staffing is inadequate, pursuant to the hospital’s policy, the nurse is to raise the concern with the charge nurse and then move up the chain of command if the matter is not resolved. With regard to patient safety, nurses complete a form of acuity each night. Critically, under California law, the hospital’s event report form cannot be discovered in a medical malpractice lawsuit or by the public for any reason. The ADO form carried no such protections.
The parties first met for bargaining in mid-July 2012. The parties then bargained on at least nine occasions through the end of 2012. At each bargaining session, the union made proposals, but the hospital refused to make proposals or counterproposals until it received the union’s wage proposal. The hospital also took the position that it would not accept the ADO forms. The parties went to mediation in mid-January 2013, where the hospital claimed an impasse over the use of the ADO forms, and therefore, an impasse over everything.
The Board agreed with the ALJ that the union continually offered to bargain about the proposals of the parties, including the ADO form, but the hospital unlawfully refused to bargain unless the union ceased using the ADO forms. The Board agreed that while the hospital could lawfully refuse to accept the ADO forms, it could not condition bargaining on the union’s abandonment of the ADO forms. As a result, the hospital’s preconditions violated the NLRA.
In addition, the Board’s decision addressed a change in training that occurred shortly after the union was certified. In August 2012, the hospital began offering certification training through HeartCode, a self-directed online program and also capped the number of paid hours for completing the HeartCode training at two hours for basic life support, and six hours each for advanced cardiac life support and for pediatric life support. Previously, and throughout June and July 2012, the hospital offered onsite, instructor-led training sessions. On August 2, the hospital’s board of trustees signed and implemented the HeartCode policy, which stated that “effective August 2, 2012, HeartCode replaces instructor-led classes.” The NLRB rejected the hospital’s argument that the decision to modify the training occurred prior to the June 2012 certification of the union, concluding the change in policy could not become effective until the change was approved by the board of trustees. The Board also concluded that the hospital’s discontinuing of the onsite, instructor-led training that some employees preferred and replacing it with a computerized program, in addition to limiting the compensable time available to nurses, was a unilateral change in wages, hours, and other terms and conditions of employment, requiring mandatory bargaining.
The Board then amended the ALJ’s remedy, finding that the hospital deliberately acted to prevent any meaningful progress during bargaining sessions. The Board recited the hospital’s refusals to bargain based on its demand for a full contract proposal and the union’s use of the ADO form and referred to the hospital’s failure to respond to requests bargaining dates, ultimately concluding that the hospital’s misconduct infected the core of the bargaining process to such an extent that traditional remedies were inadequate. The Board also noted that the hospital’s deliberate refusal to bargain in good faith occurred in the critical postelection period when the union, as a newly certified collective-bargaining representative, was highly susceptible to unfair labor practices tending to undermine the employees’ support for the union. According to the Board, reimbursement of the union’s negotiation costs was necessary to make the union whole and to ensure a return to the status quo at the bargaining table.
In light of labor’s reinvigorated activities in the health care sector, it is important for health care providers to work closely with their labor counsel in bargaining and modifying the conditions of employment of bargaining unit employees. Even when addressing arguably self-serving demands that could jeopardize patient privacy and potentially expose the healthcare provider to liability, the Board expects employers to continue to bargain, rather than place preconditions on continued negotiations. Finally, even personnel changes planned prior to certification may require the parties to bargain before those changes can be implemented.