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Declaring Planned Insurance Change a ULP, Open Info Demand Barred Impasse: NLRB
Practical Law Legal Update w-001-0031 (Approx. 6 pages)
Declaring Planned Insurance Change a ULP, Open Info Demand Barred Impasse: NLRB
by Practical Law Labor & Employment
| Published on 01 Dec 2015 • USA (National/Federal) |
In Prime Healthcare Centinela, LLC, the National Labor Relations Board (NLRB) held that an employer's failure to provide a union with information it requested relating to the employer's health insurance proposal precluded a finding that the parties were at impasse when the employer unilaterally implemented the health insurance proposal.
On November 24, 2015, in Prime Healthcare Centinela, LLC, the panel (Board) heading the NLRB's judicial functions:
- Held in a 2-1 decision that data and reports about patient care and staffing at facilities other than the one where the bargaining unit employees worked was presumptively relevant for collective bargaining.
- Unanimously found that the employer unlawfully:
- failed to provide information relevant to the quality of care at employer-affiliated hospitals employees would be required to use under the employer's last, best, and final health insurance proposal;
- declared an impasse; and
- unilaterally implemented its health insurance proposal.
The majority also separately found that the employer unlawfully announced the plan for health insurance changes based its proposal. The concurring Board member disapproved of the majority's application of a relevance presumption about the information requested, holding that:
- The unanswered request alone precluded a bargaining impasse.
- The employer committed an independent, preliminary unfair labor practice (ULP) by announcing the health insurance change, separate from the ULP for unilaterally changing the health insurance''.
Background
In February 2010, hospital Prime Healthcare Centinela (Centinela) (part of hospital network Prime Healthcare Management (Prime)) proposed changes to the health insurance plan covering Centinela's unionized employees. Unlike Centinela's existing plan, the new proposal required employees to use hospitals in Prime's network. On July 23, 2010, the union requested information from Centinela by letter about the quality of care and staffing in Prime's network. Centinela refused to provide the requested information. The union later claimed that the information was necessary for reviewing Ceninela's health insurance proposal.
In September 2010, Centinela announced that it would offer the new health insurance plan effective January 1, 2011. In October 2010, following further collective bargaining sessions, Centinela presented a "final offer" and declared impasse. The parties negotiated further and in December 2010, Centinela presented a "last, best and final offer". On January 1, 2011, Centinela unilaterally implemented a new health insurance plan.
The union filed ULP charges and the NLRB General Counsel issued a ULP complaint against Centinela.
Outcome
The Board (Chairman Peace and Members Miscimarra and Hirozawa) unanimously held that:
- Centinela violated Sections 8(a)(5) and 8(a)(1) of the NLRA by:
- failing to provide the information about the quality of care at Prime requested by the union on July 23, 2010; and
- unilaterally implementing its health insurance proposal in January 2011.
- The parties were not at impasse in January 2011 when Centinela unilaterally implemented the health insurance proposal.
- The Board held 2-1 (Member Miscimarra dissented) that:
- The information the union requested in July 2010 was presumptively relevant.
- Centinela's failure to provide the union with the requested information precluded a finding that the parties were at impasse when Centinela unilaterally implemented its health insurance proposal in January 2011.
- Centinela's September 2010 announcement that the new health insurance plan would take effect on January 1, 2011 (and that employees would have to choose a new plan beginning November 1, 2010) itself violated Sections 8(a)(5) and 8(a)(1) of the NLRA.
The Board majority (Chairman Peace and Member Hirozawa) found that:
- The union's information request was presumptively relevant because it concerned information related to the bargaining unit employees' terms and conditions of employment. The union would use the information to evaluate the employer's health insurance proposal and its ramifications for the bargaining unit employees, including:
- the description of the plan;
- the insurance carrier's condition and reputation.
- Centinela's failure to provide the requested information precluded a finding that the parties were at impasse in January 2011 because the information request concerned a major issue (health insurance) between the parties throughout their negotiations. The majority distinguished this case from the case relied on by Member Miscimarra in support of his dissent, noting that the information request in that case did not address a key issue of negotiation. (Sierra Bullets LLC, 340 N.L.R.B. 242 (2003).)
- Centinela's 2010 announcement was a ULP because it:
- was not merely an announcement of a planned change but also included a requirement that employees take action to enroll in the new plan;
- did not indicate that negotiations were ongoing on the health insurance issue but presented the change as something that was already finalized and inevitable; and
- sent a message that Centinela would no longer negotiate with the union about health insurance.
Member Miscimarra noted that:
- The information requested by the union in July 2010 was not presumptively relevant because it:
- concerned matters outside the bargaining unit the union represented; and
- was not necessary or relevant to the union's representation of the bargaining unit.
- Although the requested information was not presumptively relevant, the union sufficiently demonstrated relevance in subsequent communications with Centinela (Hertz Corp. v. NLRB, 105 F.3d 868 (3d Cir. 1997)).
- Centinela's refusal to provide the requested information did not preclude the parties from reaching an impasse in January 2011 because:
- the underlying quality-of-care concerns in the union's July 2010 information request were not "core issues separating the parties at the bargaining table" (Sierra Bullets, LLC 340 N.L.R.B. 242, 244 (2003)); and
- before making the request in July 2010, the union had already accepted the new health insurance plan's requirement that employees would use Prime hospitals.
- Centinela's September 2010 announcement that the employees' health insurance plan was changing should not be a ULP because it did not amount to an actual change in employees' existing terms and conditions of employment, only an announcement that a change was coming (NLRB v. Katz, 369 U.S. 736, 742-43 (1962); Daily News of Los Angeles, 315 N.L.R.B. 1236, 1238 (1994)).
Practical Implications
In Prime Healthcare Centinela, the Board majority takes a broader view of what constitutes a "presumptively relevant" union request for information. The Board majority evaluates the request more abstractly, considering requests that are about the quality of health care facilities to be related to the bargaining unit employee's employment terms and conditions. Those facilities will be servicing employees as patients after implementation of the employer's health insurance proposal. In doing so, the majority makes a noticeable difference by:
- Requiring employers to produce a broader range of information during bargaining at a union's request without requiring the union to explain at the time of the request how it relates to bargaining unit employees' employment terms and conditions.
- Making it more likely that an employer's failure to provide requested information during bargaining will form the basis for a finding that such failure precluded:
- the parties from reaching an impasse; and
- the employer from lawfully implementing its last best offer on reaching a purported impasse.
The Board's decision is also noteworthy because the majority found the employer committed an independent ULP by announcing its intended changes to insurance. As Member Miscimarra noted in a footnote dissent, ordinarily a ULP does not occur until the unlawful change occurs. Concerns about an announcement's unlawful effects are cumulative of, and are ultimately supplanted by the effects of, the employer making the actual change. Conceivably, an announced plan for a unilateral change, even if ultimately abandoned by the employer, could still form a ULP based on the majority's reasoning.