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Hospital can’t lawfully withdraw recognition from nurses’ union it resisted for eight years

By Ronald Miller, J.D.

In view of a hospital’s repeated violations of the rights of its nurses after they selected a union as bargaining representative, and its eight years of avoiding bargaining with the union, it could not lawfully withdraw recognition from the union in the midst of challenges to NLRB orders, with the union on the verge of securing its first contract, ruled the D.C. Circuit. The appeals court concluded that substantial evidence supported finding that the union’s presumption of majority support was irrebuttable because the hospital had refused to deal with the duly elected union. Moreover, a decertification petition was unreliable where the employer’s past unfair labor practices “significantly contributed” to the loss of majority status. Judge Millett filed a separate concurring opinion (Veritas Health Services, Inc. dba Chino Valley Medical Center v. NLRB, July 10, 2018, Pillard, C.).

Hospital vehemently resists union. In 2010, nurses at the hospital elected the union to represent them. In the months leading up to the election, the hospital committed multiple serious unfair labor practices, including threatening to cut back vacation benefits and flexible scheduling, to shut down the hospital, and to fire employees. An executive engaged in surveillance, interrogated and threatened to discipline employees who openly supported the union. After the election, the hospital committed still more unfair labor practices, and in the ensuing eight years, the hospital continued to resist the union. It repeatedly violated the nurses’ rights in its efforts to avoid dealing with the union. It threatened, coerced, and retaliated against nurses, including firing a nurse in retaliation for his visible support of the union. The union successfully challenged the employer’s unfair labor practices before the Board.

Refuses to bargain. Meanwhile, the hospital refused to bargain with the union. It did not commence bargaining with the union until a court enforced an NLRB order requiring it to do so. In three separate orders, the Board found that the employer unlawfully refused to bargain. Petitions to enforce two of those orders have already been granted.

Withdrawal of recognition. Here, the appeals court had to consider whether, in the midst of the hospital’s repeated challenges to the Board’s orders, and with the union on the verge of securing its first contract, the hospital could lawfully withdraw recognition from the union, or whether its refusal to bargain constituted yet another unfair labor practice. The appeals court also had to determine whether to enforce the Board’s chosen remedies, and whether the union had a right to intervene in the proceedings below.

Under longstanding Board precedent, when a union is recognized as the bargaining representative of a unit of employees, that union is entitled to a presumption that it enjoys the support of a majority of the represented employees. This presumption is rebuttable: An employer may unilaterally withdraw recognition if it has objective evidence that the union has lost majority support.

In this instance, the Board invoked all three limits on that privilege. First, the union’s presumption of majority support was irrebuttable because the employer refused to deal with the duly elected union. Second, a decertification petition was unreliable and not actionable by the hospital where its past unfair labor practices “significantly contributed” to the loss of majority status. Third, the hospital could not rely on its general suspicion, but bore the burden to show “actual loss of majority support.”

Certification year. The D.C. Circuit concluded that the first two conclusions were supported by substantial evidence. The hospital withdrew recognition during the “certification year.” The Board’s order directed the employer to bargain and specified that the certification year would be extended to begin on the date the employer began to bargain in good faith. The appeals court observed that such extensions are a standard remedy when an employer’s refusal to bargain has consumed all or a substantial part of the original post-election certification year. Here, the first bargaining session occurred on June 13, 2012. Consequently, the employer’s withdrawal from bargaining on June 10, 2013—three days shy of a year later—was barred as premature.

Employer “tainted” loss of majority support. Next, the court concluded that the hospital’s unfair labor practices “tainted” any loss of majority support. The hospital’s many unremedied unfair labor practices during and after the election tainted the June 2013 decertification petition. The parties agreed that the presence or absence of a causal nexus between unfair labor practices and a union’s loss of majority support is determined under the test set forth in Master Slack.

The Master Slack test allows parties to focus on objective and readily discernible considerations. In this case, the Board relied on very robust evidence to find that the hospital’s past unfair labor practices tainted any decertification petition. The unremedied unfair labor practices were “numerous” and “egregious”; included multiple hallmark violations” and were precisely “the sort that cause disaffection among employees.” The employer’s retaliatory termination of a prominent union supporter was not likely to be forgotten, and its threat to shutter the hospital and its curtailment of employee benefits also constituted violations with lasting effects. Accordingly, the second and third Master Slack factors weighed heavily in favor of the Board’s conclusion that the employer’s past transgressions tainted any decertification effort.

The Board also found, under the first factor, that three years was too little time to “ameliorate the effect of” such severe and pervasive unfair labor practices. That finding comported with Board precedent recognizing that a decertification petition may be an unreliable indicator of employee sentiment if it arose during a time when the employer had not yet remedied its many unfair labor practices. While the decertification petition was circulating, the hospital had yet to do anything to reinstate or otherwise make whole the nurse it fired three years earlier.

Board remedies. The hospital also challenged several Board remedies as unsupported by the record and unduly harsh. Here, the appeals court found that it lacked jurisdiction to review certain challenges because the employer failed to first present its objections to the Board. As a result, the appeals court declined to review a cease and desist order, as well as the Board’s requirement that the employer mail notice of its ruling to the employees.

On the merits, the appeals court examined the hospital’s challenges to a requirement it pay litigation costs and expenses, and publicly read a notice to its employees concerning its unlawful conduct. As to the first challenge, the Board agreed that its award of litigation costs and expenses was incorrect. But with regard to the public notice reading, the appeals court found that the employer made no persuasive case to overturn the Board’s choice of remedies.

Concurrence. In a separate concurring opinion, Judge Millett wrote to express his concern for the Board’s continued failure to establish any discernible, consistent standard for granting and denying intervention in agency proceedings. In this case, the Board stated summarily that the denial of a petition to intervene fell “within established precedent” concerning decertification petitioners’ request to intervene in unfair labor practice proceedings. However, the Board did not cite any cases that might constitute a coherent body of “established precedent.” Instead, the agency cited only to its generic intervention rule, 29 C.F.R. § 102.29. The problem is that the cited regulation provides no substantive standards or guidance on when intervention is or is not proper in agency proceedings. Nonetheless, Millett found that this failing was without consequence because the intervention claims pertained to a legally foreclosed decertification petition.