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. He is a member of the Healthcare industry group and a member of the Higher Education group.

With a background as a former Deputy General Counsel, Michael understands first-hand…

Michael R. Bertoncini is a principal in the Boston, Massachusetts, office of Jackson Lewis. He is a member of the Healthcare industry group and a member of the Higher Education group.

With a background as a former Deputy General Counsel, Michael understands first-hand the competing demands and unique challenges faced by in-house counsel. Before joining Jackson Lewis, he was responsible for all labor and employment law matters for the largest fully integrated community care hospital system in New England. Michael provides timely, practical advice that helps clients achieve their strategic goals while ensuring compliance with legal obligations.

With deep experience in a broad range of industries, Michael has a keen interest in the healthcare, higher education, museum, and arts & music sectors. He is dedicated to supporting clients in these areas, leveraging his extensive experience to address the specific challenges faced by institutions and organizations in these fields.

Michael regularly partners with clients to establish positive employee relations. In labor relations matters, he 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.

Michael’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 reviews and develops policies and procedures, written information security plans and integrated compliance programs to ensure his clients meet their obligations under privacy and data security laws. Michael represents clients in investigations of alleged data breaches and advises them on reporting obligations.. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.