A hospital violated the National Labor Relations Act when it changed its dress policy without first giving the union representing its nurses an opportunity to bargain and by failing to provide information the union requested regarding the policy, a National Labor Relations Board administrative law judge has found in Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County, Case No. 04-CA-097635 (Sept. 10, 2013). 

The hospital had a dress policy that provided each department would develop and maintain guidelines on appropriate dress.  The policy allowed nurses wide latitude as to the type and color of scrubs they wore at work.  In 2012, the hospital implemented a new dress policy requiring all nurses to wear solid navy blue scrubs, except for those working in the operating, delivery, and cardiac rehabilitation rooms, who would wear colors and patterns specific to their departments.  The hospital provided each nurse with three free sets of the required scrubs.  The new policy also limited the apparel that nurses could wear over their scrubs. 

The union representing the nurses demanded to bargain over the policy change and requested information regarding the new policy.  The hospital did not respond to either request.  The union then filed an unfair labor practice charge and the NLRB’s Acting General Counsel issued a complaint alleging the hospital violated the NLRA by: (1) failing and refusing to bargain with the union over the change to the dress policy, and (2) failing and refusing to furnish the union with the requested information.

The ALJ held that workplace apparel is a mandatory subject of bargaining and that the hospital’s change to the dress policy was material, substantial and significant.  Accordingly, the ALJ found the failure to bargain over and its unilateral change to the dress policy violated Sections 8(a)(1) and (5) of the NLRA.  Section 8(a)(1) prohibits an employer from interfering with employees as they engage in rights guaranteed by the NLRA.  Section 8(a)(5) requires the employer to bargain collectively in good faith with the union.

The ALJ also found the information the union requested about the new policy was directly related to the nurses’ terms and conditions of employment. Thus, it was presumptively relevant to the union’s proper performance of its collective bargaining duties.  The ALJ noted that the hospital had an obligation to respond to this request in good faith as promptly as possible, unless it presented sufficient evidence to rebut the presumption of relevance.  Here, the hospital did not rebut that presumption because it did not respond to the union’s request.  Therefore, the ALJ held the hospital violated Sections 8(a)(5) and (1) of the NLRA by refusing to respond to the union’s information request.

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.