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Binstock v. DHSC, LLC

United States District Court, N.D. Ohio, Eastern Division

September 5, 2017

ALLEN BINSTOCK, Petitioner,
v.
DHSC, LLC, Respondent.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 1]

          BENITA Y. PEARSON, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Petitioner Allen Binstock's, Regional Director, Region 8, for and on behalf of the National Labor Relations Board (“NLRB”), Petition for Injunction Under Section 10(j) of the National Labor Relations Act (“the NLRA” or “the Act”). ECF No. 1; see also 29 U.S.C. § 160(j). Respondent DHSC, LLC objects to the Petition. ECF No. 16. The Court granted Petitioner's Motion for judicial resolution based on the administrative record. ECF No. 28. The Court is fully informed having reviewed the record and that submitted by the parties. For the following reasons, the Court grants the Petition and issues the requested injunctive relief.

         I. Background

         On August 22, 2012, Respondent DHSC, LLC, d/b/a Affinity Medical Center entered into a Consent Election Agreement (“CEA”) with the National Nurses Organizing Committee (“the Union”). ECF No. 16-1. Respondent and the Union agreed that the representation proceedings would be subject to the authority of the Regional Director. Id. at PageID #: 498. The Regional Director approved the CEA, and an election took place on August 29, 2012. Id. at PageID #: 470. At the conclusion of the election, seven ballots were challenged by either Respondent or the Union. Id. The Regional Director resolved the challenged ballots, ruling that four of the seven ballots should opened and counted. ECF No. 16-2 at PageID #: 501-03. Ultimately, the Union gained the majority of the votes, and it was certified as the exclusive bargaining representative of the employees. ECF Nos. 16-3, 16-4. The bargaining unit is defined as:

All full-time and regular part-time, and per diem Registered Nurses, including those who serve as relief charge nurses, employed by the Employer at its 875 Eighth Street N.E., Massillon, Ohio facility, but excluding all other employees, including managers, confidential employees, physicians, employees, guards and supervisors as defined in the Act, as amended.

ECF No. 16-4 at PageID #: 509.

         Over the course of the Union and Respondent's relationship, the Union filed several charges against Respondent, alleging that Respondent had engaged in various unfair labor practices, in violation of Sections 8(a)(1) and (5) of the NLRA. ECF No. 1 at PageID #: 2-3, ¶ 4. These charges were referred to Petitioner as the Regional Director of Region 8 of the National Board of Labor Relations, who consolidated the charges. Id. at PageID #: 3, ¶ 5. Petitioner filed the instant Petition for temporary injunctive relief under Section 10(j) of the NLRA. ECF No. 1.

         II. Standard of Review

         Section 10(j) (29 U.S.C. § 160(j)) provides:

The Board shall have power, upon issuance of a complaint . . . charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court . . . for appropriate temporary relief or restraining order. Upon the filing of any such petition the court . . . shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

This injunctive relief preserves the case's status quo while underlying administrative proceedings are pending. Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 970 (6th Cir. 2001). The court's inquiry is limited. The district court does not resolve factual disputes, make credibility determinations, or decide the merits of the unfair labor practice charges. Id. (citing Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 28 (6th Cir. 1998)).

         When deciding to issue an injunction, the district court first evaluates whether there is reasonable cause to believe that a violation of the Act has been committed. Ahearn v. Jackson Hosp. Corp., 351 F.3d 226, 234-35 (6th Cir. 2003). Petitioner's burden of establishing reasonable cause is “relatively insubstantial.” Id. (citing Schaub, 250 F.3d at 969). Petitioner “need not prove a violation of the NLRA nor even convince the district court of the validity of the Board's theory of liability; instead, he need only show that the Board's ‘theory is substantial and not frivolous.'” Shaub, 250 F.3d at 969 (citing Fleischut, 859 F.2d at 28). Petitioner must also show that “the facts of the case are consistent with the Board's legal theory.” Id. (citing Fleischut, 859 F.2d at 29). The court does not resolve conflicts in the evidence. Instead, as long as facts exist that could support the Board's theory of liability, the district court may find reasonable cause. Id. (citing Fleischut, 859, F.2d at 29 and Gottfried v. Frankel, 818 F.2d 485, 494 (6th Cir. 1987)).

         Once a court has determined that there is reasonable cause to believe that a violation of the Act has been committed, the court determines whether the requested injunctive relief is just and proper. Ahern, 251 F.3d at 234-35. “In determining whether injunctive relief is just and proper, the legal standard a district court must apply is whether such relief is ‘necessary to return the parties to the status quo pending the Board's proceedings in order to protect the Board's remedial powers under the NLRA, and whether achieving status quo is possible.'” Kobell v. United Paperworkers Int'l Union, AFL-CIO, CLC, 965 F.2d 1401, 1410 (6th Cir. 1992) (quoting Gottfried v. Frankel, 818 F.2d 485, 495 (6th Cir.1987)). “[Status quo] is defined as that existing prior to the adoption of the allegedly unfair labor practice.” Id. (emphasis in the original). The relief granted must “only [be] that reasonably necessary to preserve the ultimate remedial power of the Board and is not to be a substitute for the exercise of that power.” Ahern, 351 F.3d at 239.

         III. Reasonable Cause

         Petitioner contends that there is reasonable cause to believe that Respondent failed and refused to provide the Union with information it requested; unilaterally changed the terms and conditions of employment; failed and refused to bargain with the Union over the termination of two employees; and has been engaging in surface bargaining. ECF No. 1 at PageID #: 6-7, ¶ 6. Each argument is discussed in turn.

         A. Request for Information

         On August 3, 2015, Respondent's parent entity, Community Health Systems, Inc., (“CHS”) announced that it was spinning off thirty-eight hospitals, including Respondent, into a new entity, Quorum Health Corporation (“QHC”). ECF No. 37-7 at PageID #: 3907-08. Respondent's Vice President of Human Resources notified the Union of this spin-off. Id. at PageID #: 3907. On September 21, 2015, the Union sent Respondent a list of questions related to the spin-off. ECF No. 37-8 at PageID #: 3914-15. The Union requested information concerning QHC workplace rules and employment manuals, healthcare benefits, disability and life insurance plans, and retirement benefits. Id. The Union reiterated its request on several occasions. ECF No. 37-9 at PageID #: 3917-18 (October 21, 2015, October 30, 2015, and November 6, 2015 requests); id. at PageID #: 3920 (November 23, 2015 request); id. at PageID #: 3924 (January 4, 2016 request); ECF No. 37-11 at PageID #: 3931 (April 15, 2016 request). The Union also made oral requests at the November 5, 2015 and April 29, 2016 bargaining sessions. ECF No. 37-1 at PageID #: 3880, ¶¶ 20-21 (Affidavit of Vanessa Sylvester, the Union's bargaining representative). After Respondent was spun-off into QHC, the Union made two more requests for information. Id. at PageID #: 3881-82, ¶¶ 24, 26 (requests made on May 24, 2016 and July 6, 2016). There is no evidence that Respondent has provided the Union with this information.

         Under sections 8(a)(5) and 8(d) of the National Labor Relations Act, it is an unfair labor practice to refuse to bargain with a union representative. 29 U.S.C. §§ 158(a)(5), 158(d). Included in the employer's duty to bargain is a duty to “provide information that is needed by the bargaining representative for the proper performance of its duties.” United Paperworkers Intern. Union v. N.L.R.B., 981 F.2d 861, 865 (6th Cir. 1992) (citing N.L.R.B. v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967)). This duty to disclose information is evaluated under a “discovery type standard, ” and the requested information “need only be relevant and useful to the union in fulfilling its statutory obligations [as bargaining representative.]” E. Tennessee Baptist Hosp. v. N.L.R.B., 6 F.3d 1139, 1143 (6th Cir. 1993) (citing Detroit Edison Co. v. N.L.R.B., 440 U.S. 301, 314 (1979)). Information concerning the bargaining unit is presumptively relevant. E.I. DuPont de Nemours & Co. v. N.L.R.B., 744 F.2d 536, 538 (6th Cir. 1984). The union bears the burden of demonstrating that information not concerning the bargaining unit is relevant. Id. (citing N.L.R.B. v. Rockwell-Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969)). “The Board need only find a ‘probability that the desired information [is] relevant . . . and that it would be of use to the union in carrying out its statutory duties and responsibilities.'” Id. (quoting Acme Indus. Co., 385 U.S. at 437).

         In this case, the Union seeks information both related and unrelated to the bargaining unit. The Union's requests for information concerning QHC's work rules, employment manuals, persons with authority to review these policies, staffing plans and persons with the ability to review these staffing plans, benefits, and administrative services are of concern to the bargaining unit and are presumptively reasonable. As for the Union's other requests, the Union contends that this information is relevant, as it concerns QHC, its organizational structure, and its “key players, ” and that this information is “integral for the Union to perform its duties as the exclusive collective bargaining representative of the employees.” ECF No. 6 at PageID #: 354. The Union has demonstrated that it has a reasonable, objective basis for this information. The information is, therefore, relevant.

         Respondent does not object to the relevance of these documents, but instead contests the Union's argument that the request was ever made. Respondent argues that the Union has only ever demanded information from CHS, and argues, without reference to supporting legal authority, that the Union should have specified that it sought information from Respondent itself. ECF No. 43 at PageID #: 4370-72.

         In one of Respondent's examples, Union representative Vanessa Sylvester emailed Respondent's representative, Don Carmody, as well as two other hospitals' respresentatives, seeking the information at issue. Mr. Carmody replied that she must “advise whether [she was] asking that the Hospitals provide you with the information being sought concerning the Quorum transaction, in order that the Hospitals can provide you with an informed response in such circumstances.” ECF No. 37-9 at PageID #: 3920. In a response directed solely to Mr. Carmody, Ms. Sylvester stated that “[i]f you intend to make a substantive response on behalf of the CHS Hospitals you represent, you should do so immediately.” Id. Respondent argues that this email was insufficient to put Mr. Carmody on notice that the Union sought the information from Respondent. ECF No. 43 at PageID #: 4371-72. This argument strains credulity. While, it is not too fanciful to acknowledge that the recipient of an emailed request may reasonably assume that the request is directed at himself. When, however, as in this case, Ms. Sylvester emailed Mr. Carmody directly, asking for a response “on behalf of the CHS Hospitals [he] represent[ed], ” Mr. Carmody was clearly on notice that she sought a response from Respondent.

         Morever, given the Union's persistence in securing responses from Respondent's representatives-it made requests on September 21, 2015, October 21, 2015, October 30, 2015, November 6, 2015, November 23, 2015, January 4, 2016, April 15, 2016, May 24, 2016, and July 6, 2016-it was unreasonable for Respondent to assume that the Union did not want Respondent to tender the information. Furthermore, at a November 5, 2015 bargaining session, Respondent informed the Union that the information was “on its way, ” indicating that it was the proper party from which to seek the information. ECF No. 29 at PageID #: 878; ECF No. 37-9 at PageID #: 3917.

         For these reasons, the Court finds that, despite being on notice of the Union's request, there is reasonable cause to believe that Respondent failed to respond, in violation of ...


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