Employers take heed: the
Board has signaled that refusing to bargain comes with costs. In Hospital of Barstow, Inc.,
361 NLRB No. 34 (Aug. 29, 2014), the National Labor Relations Board
found that Barstow Community Hospital violated Sections 8(a)(1) and 8(a)(5) of
the National Labor Relations Act by refusing to submit proposals or counter proposals during collective bargaining until it received the Union’s
entire contract proposal. The Hospital further violated the Act by declaring
impasse and refusing to bargain unless the Union directed unit members to stop
documenting purportedly unsafe work situations.
In 2012, the California
Nurses Association (the Union) began an organizing drive and won an
election to represent the Hospital’s registered nurses. The Union was
certified as the nurses’ bargaining representative on June 29. On August 2, the
Hospital unilaterally discontinued its offsite life support training program
for nurses. In place of the offsite program, the Hospital instituted a
new training module called HeartCode. HeartCode is an online
self-directed certification program. Problematically for the Hospital,
officials capped the number of paid hours for completing the HeartCode
training. Several nurses failed to complete the HeartCode training module
under the time cap and were not paid for the additional hours they spent
completing the required training.
The
Board found that the unilateral change in employee training violated the Act. Because the training related to the nurses’ terms and conditions of
employment, the change in training to HeartCode was a mandatory subject of
bargaining. Since the change to a capped training affected some nurses’
wages, the change was deemed “material, substantial, and significant” and
accordingly violated Sections 8(a)(1) and (a)(5) of the Act.
The
decision also took the Hospital to task for refusing to provide any proposals
or counter proposals in any of the first five bargaining sessions between the
parties because it had not received a full set of proposals from the Union. While the Hospital did
set out some proposals after the Union offered a full contract proposal, the
Hospital threatened to stop the bargaining process if the Union did not direct
the nurses to cease documenting potentially unsafe working conditions.
The Hospital then declared impasse despite the Union’s open invitation to
discuss any matter.
The
Hospital’s declaration of impasse and its bargaining in bad faith “directly
caused the Union to waste its resources in futile bargaining.” Moreover,
the Hospital’s failure to bargain in good faith took place immediately after
the Union was certified as the nurses’ collective-bargaining representative,
which the Board considers “a critical period” of time. The Board thus ordered
the Hospital not only to return to the status quo ante, but to reimburse the
Union for the expenses it incurred during bargaining, including salaries,
travel expenses, and per diems.
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