A National Labor Relations Board Administrative Law Judge (“ALJ”) recently held that Petaluma Valley Hospital violated the National Labor Relations Act by refusing to provide the California Nurses Association/National Nurses United (“CNA/NNU”) with information regarding strike replacements. This decision is of particular importance to unionized hospitals that are faced with increasingly common nursing strikes.

The hospital and NNU were involved in contract negotiations and – in what is becoming a familiar NNU bargaining tactic – the NNU notified the hospital that nurses would engage in a one-day strike. In response, the hospital engaged a staffing agency to supply replacement nurses. Because the staffing agency required a five-day minimum for replacement nurses, the hospital informed NNU that nurses could not return to work until after the five-day period.

Asserting the information was relevant to evaluate the hospital’s claim, the NNU sent an information request to the hospital seeking a copy of the contract with the staffing agency; any and all documents related to the negotiation of the agreement with the staffing agency; and copies of all contracts the hospital entered with staffing agencies for the past three years. The hospital refused to produce the requested documents, objecting that the information sought did not relate to the terms and conditions of employment for bargaining unit members and that the information was confidential, proprietary business and/or financial information and protected by the attorney-client and/or work product privileges.

In ruling on the NNU’s resulting unfair labor practice charge against the hospital for failure to provide the information, the ALJ rejected the hospital’s justifications for refusing to produce the staffing contract, finding that “[b]ecause a hospital has a right to delay reinstatement of striking workers when it has guaranteed temporary replacement workers minimum work days, the [CNA/NNU’s] request for the temporary staffing contract is especially relevant in determining whether [the hospital] was contractually obligated to employ the replacement workers for five days and delay the reinstatement of the strikers.” Applying this reasoning, the ALJ similarly held that documents related to the negotiation of the staffing contract and prior staffing contracts were relevant. The ALJ concluded that the hospital violated the Act and ordered the hospital to produce the documents. It is unclear at this point whether the hospital will appeal the ALJ’s decision to the National Labor Relations Board (“Board”).

Although the ALJ’s decision is not binding legal precedent unless the decision is adopted by the Board, employers should exercise caution when responding to a union’s request for information related to strike replacements.

 Photo credit: Alex Nikada