Employment Law Daily Hospital that began unconditional bargaining, then refused to continue, is subject to preliminary injunction
Wednesday, July 18, 2018

Hospital that began unconditional bargaining, then refused to continue, is subject to preliminary injunction

By Ronald Miller, J.D.

An NLRB regional director showed a sufficient likelihood of success in establishing that an employer withdrew recognition from a union, and refused to bargain unconditionally, as well as a continuing threat of irreparable harm to the union’s collective bargaining rights to support injunctive relief, ruled the Ninth Circuit. The appeals court found the record showed that the employer had considerable dealings with the union following its certification, including discussions that resulted in agreements over some working conditions, and that these negotiations took place before the employer made any official challenge to the certification. Accordingly, it could not begin unconditional bargaining and then later withdraw recognition and refuse to bargain unconditionally (Coffman v. Queen of the Valley Medical Center, July 16, 2018, Schroeder, M.).

Union election. The employer operated an acute-care hospital. The union represented a unit of nonprofessional and technical employees at the facility. In a mail ballot election held on November 15, 2016, a majority of employees voted by a wide margin for union representation. The employer objected to the election results, but those were overruled and the union was certified as the employees’ bargaining representative. A request for review of the union’s certification was denied by the NLRB on February 28, 2017.

On March 16, the employer sent the union a letter asserting that the election was flawed and demanding that the union “stipulate to a new in-person election.” If the union refused, the employer stated that it would engage in a technical refusal to bargain by notifying the union that it believed the bargaining unit was faulty. However, prior to the March 16 letter, the employer had extensive discussions with the union about working conditions and schedules. During these communications, the employer did not indicate to the union that it was bargaining conditionally by reserving its right to contest the union’s certification.

Injunctive relief. The regional director successfully applied for a Section 10(j) injunction requiring the employer to engage in unconditional bargaining with the union. The employer’s delay in communicating its intention to contest the union’s certification resulted in a loss of union support. Employees informed the union that they feared retaliation and were not willing to “stick their necks out.” They also indicated that the employer’s hostility toward the union created a tense working environment. The record before the district court also reflected that following the March 16 letter, the union representative was prevented from accessing department break rooms and observed increased security guard presence around her. She was also prevented from speaking with unit employees.

Likelihood of success. On appeal, the employer contended that the regional director lacked a sufficient likelihood of success in establishing its underlying position that the employer recognized the union and engaged in unconditional bargaining before withdrawing recognition and refusing to bargain. According to the employer, it did nothing more than bargain conditionally to preserve its right to challenge the results of a union election. As to a discrimination claim by a union supporter who was transferred to a different shift, the employer challenged the evidentiary basis for a finding of discrimination.

Withdrawal of recognition. The district court held that the regional director presented persuasive evidence that the employer bargained with the union after the election until March 16, when it withdrew recognition. Under the NLRA, employers and unions have a “mutual obligation” to engage in unconditional collective bargaining. An employer cannot begin unconditional bargaining and then later withdraw recognition and refuse to bargain unconditionally.

The question in this case was whether the regional director had shown the likelihood of success in establishing unlawful withdrawal of recognition. The district court ruled that the employer’s communications prior to March 16 demonstrated unconditional bargaining, which waived the certification challenge.

While an employer can reserve its right to challenge union certification by refusing to bargain unconditionally, in this instance it was alleged that the employer first negotiated with the union, then withdrew recognition. An employer cannot begin unconditional bargaining and then later withdraw recognition. Board authority emphasizes the importance of immediacy in an employer’s refusal to bargain unconditionally.

Here, the Ninth Circuit concluded that the regional director had shown a likelihood of success in establishing that the employer engaged in proscribed conduct by taking part in several bargaining sessions, discussing specific terms and conditions of employment, and providing information relevant to comprehensive bargaining.

Informational meetings. The employer did not dispute the meetings with the union, but argued that they amounted to informational sessions rather than bargaining. However, the appeals court concluded that the meetings were not mere informational sessions because specific issues were discussed. Because the employer had participated in bargaining discussions for two and one-half weeks before sending its refusal to bargain letter, and provided the union with information relevant to bargaining, the regional director presented evidence establishing that the employer engaged in unfair labor practices by recognizing and bargaining unconditionally, and later unlawfully withdrawing recognition of the union and refusing to bargain unconditionally. Thus, the regional director established a likelihood of success on the merits.

Irreparable harm. The regional director also provided sufficient evidence to demonstrate a likelihood of irreparable harm due to the employer’s unfair labor practices. His evidence indicated irreparable harm from dissipation of employee support for the union as well as employee fear of retaliation and discrimination by the employer.

The district court held that the harm to the union outweighed harm to the employer. The appeals court rejected the employer’s contention that the district court erred in balancing the equities, because it would face significant hardship if forced to recognize and bargain with the union. It ruled that the district court weighed the equities, finding that preservation of the status quo as it existed before the employer’s unfair labor practices outweighed any hardship the employer might suffer if required to bargain. The appeals court also held that the district court did not abuse its discretion in balancing the equities, and in finding that injunctive relief in this case was in the public interest.

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