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NLRB Affirms that Employers Cannot Bypass Union During Contract Negotiations

Originally posted on: https://www.employmentlit.com/2022/11/07/nlrb-affirms-that-employers-cannot-bypass-union-during-contract-negotiations/

By:  Ty Hyderally, Esq., Francine Foner, Esq., and Tom Daly.

The National Labor Relations Board (NLRB) recently affirmed the decision of Newark Administrative Law Judge, Benjamin W. Green, that Hackensack Meridian Health (HMH), engaged in certain unfair labor practices (ULP), in violation of the National Labor Relations Act (NLRA). The ULPs involved HMH bypassing the Health Professionals and Allied Employees Union (Union) and sending an email directly to Union employees about certain policy and benefit changes. Judge Green held that HMH violated the NLRA by announcing its desire to make changes to the Union employees’ terms and conditions of employment without providing the Union adequate advanced notice and bargaining proposals.

HMH has a workforce of about 33,000 employees across numerous healthcare facilities.  The Union represents approximately 3,000 of those employees, comprised of registered nurses, licensed practical nurses, and service and maintenance workers. During contract negotiations in May 2019, HMH revealed its desire to standardize employee health benefits. The Union strongly opposed plans to standardize benefits, claiming that terms would be less favorable than any of its previous agreements.

HMH employed outside counsel who led the negotiation process on the company’s behalf. The Union had two negotiators to represent their interests across several locations that housed Union employees. HMH’s negotiator held a bargaining session where plans for the standardized benefits plan would be detailed. During the session, HMH showed a presentation with screenshots of new website that shared information on the harmonization of benefits for all HMH employees. The presentation also contained information on a range of terms and conditions of employment that, if applied to Union employees, would modify certain provisions on mandatory subjects of bargaining. The day after the presentation, the website went live and HMH’s negotiator emailed the link to Union representatives and all 33,000 employees. The Union subsequently filed a complaint alleging that HMH’s communications with represented employees constituted direct dealing, in violation of the NLRA.

The NLRA protects the rights of employees to organize for the purpose of collective bargaining with their employer. 29 USCS §§ 157. Employers are prohibited from interfering or denying these rights. 29 USCS § 158(a)(1). Once employees are represented by a union and have a designated representative, employers must only negotiate issues affecting union members through this representative. For an employer “to refuse to bargain collectively with the representative” is considered an unfair labor practice. 29 USC § 158(a)(5). Further, the NLRA decrees those representatives designated by the union, “shall be the exclusive representatives … for the purposes of collective bargaining[.]” 29 USC § 159(a).

In April 2020, Judge Green found that HMH had violated Sections 8(a)(5) and (1) of the NLRA, because HMH’s email constituted an unfair labor practice by dealing directly with represented employees. The NLRB affirmed this decision on September 26, 2022. Unlawful direct dealing occurs when: (1) an employer communicates directly with union-represented employees; (2) the discussion was for the purpose of establishing or changing wages, hours, and terms and conditions of employment or undercutting the union’s role in bargaining; and (3) such communication was made to the exclusion of the union. Permanente Medical Group, 332 NLRB 1143, 1144 (2000) (citing Southern California Gas Co., 316 NLRB 979 (1995)); see also Metalcraft of Mayville, Inc., 367 NLRB No. 116, slip op. at 8, 16–17 (2019).

HMH pushed an agenda it knew was opposed by Union representatives, and contacted represented employees in the process. This conduct is expressly prohibited by the NLRA and the decision serves as a reassuring reminder that the NLRB will continue to protect employees throughout the collective bargaining process.

To read the decision, click here: https://www.nlrb.gov/case/22-CA-223734.


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