Hunton Employment & Labor Perspectives

In an October Advice Memorandum, the Office of the General Counsel for the NLRB (General Counsel) concluded that a union’s continued actions of unlawful insistence are not a refusal to bargain if bargaining negotiations have ceased.

In a dispute between the Service Employees International Union – United Healthcare Workers West (the Union) and Stanford Health Care (Stanford), the Union sought to expand its bargaining unit by adding in service and technical employees at Stanford’s hospitals. At the first two bargaining sessions, Stanford rejected the Union’s proposal. At the third session, the Union presented a local ballot initiative it had recently filed that aimed at prohibiting healthcare providers, like Stanford, from charging privately insured patients more than 15% above the cost of care. Stanford asserted that the ballot initiative would harm its revenues, was at odds with the interests of unit employees, and was pursued by the Union to gain leverage over Stanford during negotiations.

Eventually, the parties reached an agreement that did not expand the bargaining unit. The Union supported the ballot initiative through, and well after, the conclusion of the negotiations. The General Counsel concluded that, while the Union’s actions may have constituted a refusal to bargain during negotiations, the Union’s continued actions after negotiations ceased were not unlawful insistence and, therefore, did not constitute a refusal to bargain.

Put differently, the six month statute of limitations for a refusal to bargain claim begins to run when negotiations cease, not when a union’s unlawful actions cease. Accordingly, employers should consider diligently pursuing claims for refusal to bargain within six months after negotiations conclude to ensure the claims are brought within the limitations period.