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.