United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. PEARSON, UNITED STATES DISTRICT JUDGE
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.
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
ECF No. 16-4 at PageID #: 509.
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
Standard of Review
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
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)).
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.
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.
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.
Request for Information
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.
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).
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.
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.
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.
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.
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