Ohio Hospital Must Bargain While NLRB Weighs Union Charges

By Lawrence E. Dubé

An Ohio hospital must immediately bargain with a nurses’ union while the National Labor Relations Board finishes processing unfair labor practice charges against it, a federal district court ruled ( Binstock v. DHSC, LLC , 2017 BL 312175, N.D. Ohio, No. 5:16CV1060, 9/5/17 ).

The ruling illustrates the power of federal trial courts to issue injunctions to prevent unfair labor practices during the often-lengthy period of administrative litigation at the NLRB.

NLRB Regional Director Allen Binstock presented evidence that DHSC LLC, which does business as Affinity Medical Center, bargained in bad faith with the National Nurses Organizing Committee and engaged in other federal labor law violations, Judge Benita Y. Pearson of the U.S. District Court for the Northern District of Ohio said Sept. 5. The NLRB is entitled to a preliminary injunction that will remain in effect until it reaches a final decision on the charges against the employer, she said.

The union has been “gratified” by the NLRB’s administrative action against DHSC, but is eager to see if the court’s order will now force “serious bargaining that leads to a contract,” Fernando Losada, the NNOC’s collective bargaining director, told Bloomberg BNA Sept. 5.

Evidence Showed Unlawful Conduct

The NLRB certified the union to represent approximately 250 registered nurses at the Massillon, Ohio, hospital after a 2012 election. The union has repeatedly filed NLRB charges against the company but never secured a contract.

DHSC’s parent company, Community Health Systems Inc., in 2015 announced it was spinning off 38 hospitals, including Affinity, into a new entity, Quorum Health Corp.

The union sent questions to DHSC about Quorum policies and work rules, as well as staffing plans and employee benefits. DHSC didn’t challenge the relevancy of the requested information but argued the union improperly addressed requests to Community Health without directly asking DHSC to provide the information.

The court rejected DHSC’s argument, finding it was clear from the union’s persistent requests that it was seeking a response from DHSC, which unlawfully failed to answer the union’s questions.

Pearson also said the NLRB regional director showed there was reasonable cause to believe DHSC unlawfully changed nurses’ benefits to Quorum programs without giving the union notice or an opportunity to bargain about the changes, and unlawfully refused the union’s request to bargain about the firing of several nurses.

The court said there was ample evidence that the hospital has engaged in “surface bargaining” or “feigning bargaining without an intent to actually come to an agreement.” Pearson said a hospital representative insisted DHSC wouldn’t change “one damn word” of its proposal for a contract, which included demands for a management rights clause that Pearson said would give management “unilateral control over terms and conditions of employment.”

Injunction Orders Immediate Bargaining

Writing there were “substantial legal theories and sufficient evidence” to support the NLRB’s claims against DHSC, the court entered a preliminary injunction.

Upon request by the union, the court ruled, DHSC must begin contract negotiations within seven days and must provide all of the information the union requested concerning Quorum Healthcare and the spinoff of hospitals by Community Health Systems. If requested by the union, the hospital must rescind its unilateral changes in employee benefits.

Unless union and management representatives agree on a different schedule, DHSC must bargain with the union for at least 24 hours per month in sessions of not less than six hours until the parties negotiate a collective bargaining agreement or reach a good faith impasse in negotiations, Pearson said. The hospital was also ordered to convene employee meetings within 10 days at which a hospital representative or, if DHSC prefers, an NLRB agent will read the court order aloud to employees.

The union considers negotiations with the employer an urgent matter, Losada said. Several Affinity nurses were recently treated for possible exposure to fentanyl or opioids in the hospital, and bargaining about employee safety should be a priority, the union official said.

DHSC counsel didn’t respond to a Sept. 6 request for comment on the court ruling.

NLRB attorneys in Cleveland represented the board. Carmody & Carmody in Glatstonbury, Conn., and Hanna, Campbell & Powell in Akron, Ohio, represented DHSC, LLC.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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