ALJ Again Rules in Favor of Hospital in Closely Watched Flu Shot Case

As reported in this blog, the National Labor Relations Board recently reversed a 2006 administrative law judge (ALJ) decision that Virginia Mason Hospital was not required to bargain with the union over a flu prevention policy that required nurses to wear a facemask or take anti-viral medication, rejecting the argument that the policy went to the hospital’s “core purpose” of protecting its patients’ health and was narrowly tailored to achieve its purpose.  The Board remanded the case back to the ALJ for consideration of the hospital’s other defenses to its unilateral implementation of the flu policy, and the ALJ issued a new opinion (case 19-CA-30154; JD(SF)-44-11).

On remand, among other things, the ALJ analyzed whether the management rights clause of the parties’ collective bargaining agreement created a “clear and unmistakable” waiver as to the union’s right to bargain about the flu policy.  In so doing, the ALJ noted the Board’s 2007 Provena St. Joseph Medical Centerdecision, in which the Board reaffirmed its adherence to the “clear and unmistakable” standard.

In finding that such a waiver was present here, the ALJ relied on several factors, including:  (1) the plain language of the agreement, which gave the hospital the right “to determine the materials and equipment to be used [and] to implement improved operational methods and procedures;” (2) internal hospital guidelines which required all personnel, including nurses, to wear facemasks when performing certain tasks; and (3) testimony that the hospital was required to have infection control policies in place; that it never bargained with the union over any aspect of such policies; and that the union never objected to them.  In light of these considerations, the ALJ found that the union waived its right to bargain over the flu policy and recommended the complaint be dismissed.

Littler will be watching this case closely, as we anticipate the NLRB General Counsel and union will appeal the ALJ’s decision.

In the meantime, employers should be aware that the threshold for establishing a “clear and unmistakable” waiver of the right to bargain is high, and cases addressing the waiver standard are very fact-specific.  Employers may not always be able to rely on a management’s rights clause  to establish a waiver and should consult experienced labor counsel prior to unilaterally implementing any flu prevention policy.


Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.