NLRB Finds GW Hospital Failed To Bargain In Good Faith In Reversal Of Vacated Decision

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On May 8, 2024, the National Labor Relations Board ("Board") issued a decision reversing a 2021 decision the Board previously vacated after former Board Member William Emanuel...
United States Employment and HR
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On May 8, 2024, the National Labor Relations Board ("Board") issued a decision reversing a 2021 decision the Board previously vacated after former Board Member William Emanuel, who participated in the ruling, was found to have broken ethics rules by failing to recuse himself from the case. In the decision, the Board held that George Washington University Hospital ("GW Hospital") violated the National Labor Relations Act (the "Act") by unilaterally withdrawing its recognition of a union and refusing to bargain in good faith. See The George Washington Univ. Hosp., L.P., 373 NLRB No. 55 (2024).

In November 2016, GW Hospital and the Service Employees International Union ("Union") began bargaining in advance of the expiration of the collective bargaining agreement that covered a bargaining unit of approximately 150 service employees. GW Hospital took a hard line throughout bargaining, refusing to concede on its proposals, which included a management-rights clause that gave the hospital the power to change health benefits and discipline workers without cause, the addition of a no-strike provision, nonbinding mediation in lieu of mandatory arbitration, and provisions that would have given the hospital the power to unilaterally set wages and end the Union's right to dues check-off.

In 2018, after two years of bargaining with little progress, GW Hospital received a decertification provision signed by 81 of 156 employees in the bargaining unit and immediately withdrew recognition of the Union and cancelled future bargaining sessions. Thereafter, the hospital implemented new wage rates and a new compensation structure.

Initially, the Board reversed the Administrative Law Judge in its vacated 2021 decision, finding that GW Hospital's actions were "hard bargaining," but did not violate the Act. In the re-issued decision, the Democratic Board majority held that GW Hospital did violate the Act – finding that the employer's proposals were "precisely the type that have been deemed by the Board and the courts to show bad faith bargaining" because "taken as a whole, [they] would have left employees and the union with substantially fewer rights and less protection than provided by law without a contract." 373 NLRB No. 55 at *4. The Board ordered GW Hospital to bargain with the Union, directed it to rescind the rules it issued after failing to reach an agreement, and ordered it to pay the Union's bargaining expenses and loss of benefits incurred due to its actions.

This decision is one of three other cases vacated by the NLRB following an investigation that former Board member Emanuel held a conflicting financial interest that should have disqualified him from participation. GW Hospital is the third of those decisions to be re-issued, joining cases involving ExxonMobil Corp. and Marathon Petroleum Corp. The Board also vacated a decision involving CVS Health Corp., but has not re-issued its decision.

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