Binstock v DHSC, LLC

Filing 60

Memorandum of Opinion and Order For the reasons set forth herein, the Court grants the Petition for Temporary Injunction. Within 7 days of this Order, Respondent is ordered to take the actions set forth herein. Judge Benita Y. Pearson on 9/5/2017. Related document(s) 1 . (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALLEN BINSTOCK,
Petitioner,
v.
DHSC, LLC,
Respondent.

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CASE NO. 5:16CV1060

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 1]

Pending before the Court is Petitioner Allen Binstock’s, Regional Director, Region 8, for
and on behalf of the National Labor Relations Board (“NLRB”), Petition for Injunction Under
Section 10(j) of the National Labor Relations Act (“the NLRA” or “the Act”). ECF No. 1; see
also 29 U.S.C. § 160(j). Respondent DHSC, LLC objects to the Petition. ECF No. 16. The
Court granted Petitioner’s Motion for judicial resolution based on the administrative record.
ECF No. 28. The Court is fully informed having reviewed the record and that submitted by the
parties. For the following reasons, the Court grants the Petition and issues the requested
injunctive relief.
I. Background
On August 22, 2012, Respondent DHSC, LLC, d/b/a Affinity Medical Center entered into
a Consent Election Agreement (“CEA”) with the National Nurses Organizing Committee (“the
Union”). ECF No. 16-1. Respondent and the Union agreed that the representation proceedings
would be subject to the authority of the Regional Director. Id. at PageID #: 498. The Regional

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Director approved the CEA, and an election took place on August 29, 2012. Id. at PageID #:
470. At the conclusion of the election, seven ballots were challenged by either Respondent or the
Union. Id. The Regional Director resolved the challenged ballots, ruling that four of the seven
ballots should opened and counted. ECF No. 16-2 at PageID #: 501–03. Ultimately, the Union
gained the majority of the votes, and it was certified as the exclusive bargaining representative of
the employees. ECF Nos. 16-3, 16-4. The bargaining unit is defined as:
All full-time and regular part-time, and per diem Registered Nurses, including those
who serve as relief charge nurses, employed by the Employer at its 875 Eighth Street
N.E., Massillon, Ohio facility, but excluding all other employees, including
managers, confidential employees, physicians, employees, guards and supervisors as
defined in the Act, as amended.
ECF No. 16-4 at PageID #: 509.
Over the course of the Union and Respondent’s relationship, the Union filed several
charges against Respondent, alleging that Respondent had engaged in various unfair labor
practices, in violation of Sections 8(a)(1) and (5) of the NLRA. ECF No. 1 at PageID #: 2–3, ¶ 4.
These charges were referred to Petitioner as the Regional Director of Region 8 of the National
Board of Labor Relations, who consolidated the charges. Id. at PageID #: 3, ¶ 5. Petitioner filed
the instant Petition for temporary injunctive relief under Section 10(j) of the NLRA. ECF No. 1.
II. Standard of Review
Section 10(j) (29 U.S.C. § 160(j)) provides:
The Board shall have power, upon issuance of a complaint . . . charging that any
person has engaged in or is engaging in an unfair labor practice, to petition any
United States district court . . . for appropriate temporary relief or restraining
order. Upon the filing of any such petition the court . . . shall have jurisdiction to
grant to the Board such temporary relief or restraining order as it deems just and
proper.
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This injunctive relief preserves the case’s status quo while underlying administrative proceedings
are pending. Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 970 (6th Cir.
2001). The court’s inquiry is limited. The district court does not resolve factual disputes, make
credibility determinations, or decide the merits of the unfair labor practice charges. Id. (citing
Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 28 (6th Cir. 1998)).
When deciding to issue an injunction, the district court first evaluates whether there is
reasonable cause to believe that a violation of the Act has been committed. Ahearn v. Jackson
Hosp. Corp., 351 F.3d 226, 234–35 (6th Cir. 2003). Petitioner’s burden of establishing
reasonable cause is “relatively insubstantial.” Id. (citing Schaub, 250 F.3d at 969). Petitioner
“need not prove a violation of the NLRA nor even convince the district court of the validity of
the Board’s theory of liability; instead, he need only show that the Board’s ‘theory is substantial
and not frivolous.’” Shaub, 250 F.3d at 969 (citing Fleischut, 859 F.2d at 28). Petitioner must
also show that “the facts of the case are consistent with the Board’s legal theory.” Id. (citing
Fleischut, 859 F.2d at 29). The court does not resolve conflicts in the evidence. Instead, as long
as facts exist that could support the Board’s theory of liability, the district court may find
reasonable cause. Id. (citing Fleischut, 859, F.2d at 29 and Gottfried v. Frankel, 818 F.2d 485,
494 (6th Cir. 1987)).
Once a court has determined that there is reasonable cause to believe that a violation of
the Act has been committed, the court determines whether the requested injunctive relief is just
and proper. Ahern, 251 F.3d at 234–35. “In determining whether injunctive relief is just and
proper, the legal standard a district court must apply is whether such relief is ‘necessary to return

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the parties to the status quo pending the Board’s proceedings in order to protect the Board's
remedial powers under the NLRA, and whether achieving status quo is possible.’” Kobell v.
United Paperworkers Int’l Union, AFL-CIO, CLC, 965 F.2d 1401, 1410 (6th Cir. 1992) (quoting
Gottfried v. Frankel, 818 F.2d 485, 495 (6th Cir.1987)). “[Status quo] is defined as that existing
prior to the adoption of the allegedly unfair labor practice.” Id. (emphasis in the original). The
relief granted must “only [be] that reasonably necessary to preserve the ultimate remedial power
of the Board and is not to be a substitute for the exercise of that power.” Ahern, 351 F.3d at 239.
III. Reasonable Cause
Petitioner contends that there is reasonable cause to believe that Respondent failed and
refused to provide the Union with information it requested; unilaterally changed the terms and
conditions of employment; failed and refused to bargain with the Union over the termination of
two employees; and has been engaging in surface bargaining. ECF No. 1 at PageID #: 6–7, ¶ 6.
Each argument is discussed in turn.
A. Request for Information
On August 3, 2015, Respondent’s parent entity, Community Health Systems, Inc.,
(“CHS”) announced that it was spinning off thirty-eight hospitals, including Respondent, into a
new entity, Quorum Health Corporation (“QHC”). ECF No. 37-7 at PageID #: 3907–08.
Respondent’s Vice President of Human Resources notified the Union of this spin-off. Id. at
PageID #: 3907. On September 21, 2015, the Union sent Respondent a list of questions related
to the spin-off. ECF No. 37-8 at PageID #: 3914–15. The Union requested information
concerning QHC workplace rules and employment manuals, healthcare benefits, disability and

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life insurance plans, and retirement benefits. Id. The Union reiterated its request on several
occasions. ECF No. 37-9 at PageID #: 3917–18 (October 21, 2015, October 30, 2015, and
November 6, 2015 requests); id. at PageID #: 3920 (November 23, 2015 request); id. at PageID
#: 3924 (January 4, 2016 request); ECF No. 37-11 at PageID #: 3931 (April 15, 2016 request).
The Union also made oral requests at the November 5, 2015 and April 29, 2016 bargaining
sessions. ECF No. 37-1 at PageID #: 3880, ¶¶ 20–21 (Affidavit of Vanessa Sylvester, the
Union’s bargaining representative). After Respondent was spun-off into QHC, the Union made
two more requests for information. Id. at PageID #: 3881–82, ¶¶ 24, 26 (requests made on May
24, 2016 and July 6, 2016). There is no evidence that Respondent has provided the Union with
this information.
Under sections 8(a)(5) and 8(d) of the National Labor Relations Act, it is an unfair labor
practice to refuse to bargain with a union representative. 29 U.S.C. §§ 158(a)(5), 158(d).
Included in the employer’s duty to bargain is a duty to “provide information that is needed by the
bargaining representative for the proper performance of its duties.” United Paperworkers Intern.
Union v. N.L.R.B., 981 F.2d 861, 865 (6th Cir. 1992) (citing N.L.R.B. v. Acme Indus. Co., 385
U.S. 432, 435–36 (1967)). This duty to disclose information is evaluated under a “discovery type
standard,” and the requested information “need only be relevant and useful to the union in
fulfilling its statutory obligations [as bargaining representative.]” E. Tennessee Baptist Hosp. v.
N.L.R.B., 6 F.3d 1139, 1143 (6th Cir. 1993) (citing Detroit Edison Co. v. N.L.R.B., 440 U.S. 301,
314 (1979)). Information concerning the bargaining unit is presumptively relevant. E.I. DuPont
de Nemours & Co. v. N.L.R.B., 744 F.2d 536, 538 (6th Cir. 1984). The union bears the burden

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of demonstrating that information not concerning the bargaining unit is relevant. Id. (citing
N.L.R.B. v. Rockwell-Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969)). “The Board need only
find a ‘probability that the desired information [is] relevant . . . and that it would be of use to the
union in carrying out its statutory duties and responsibilities.’” Id. (quoting Acme Indus. Co.,
385 U.S. at 437).
In this case, the Union seeks information both related and unrelated to the bargaining
unit. The Union’s requests for information concerning QHC’s work rules, employment manuals,
persons with authority to review these policies, staffing plans and persons with the ability to
review these staffing plans, benefits, and administrative services are of concern to the bargaining
unit and are presumptively reasonable. As for the Union’s other requests, the Union contends
that this information is relevant, as it concerns QHC, its organizational structure, and its “key
players,” and that this information is “integral for the Union to perform its duties as the exclusive
collective bargaining representative of the employees.” ECF No. 6 at PageID #: 354. The
Union has demonstrated that it has a reasonable, objective basis for this information. The
information is, therefore, relevant.
Respondent does not object to the relevance of these documents, but instead contests the
Union’s argument that the request was ever made. Respondent argues that the Union has only
ever demanded information from CHS, and argues, without reference to supporting legal
authority, that the Union should have specified that it sought information from Respondent itself.
ECF No. 43 at PageID #: 4370–72.

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In one of Respondent’s examples, Union representative Vanessa Sylvester emailed
Respondent’s representative, Don Carmody, as well as two other hospitals’ respresentatives,
seeking the information at issue. Mr. Carmody replied that she must “advise whether [she was]
asking that the Hospitals provide you with the information being sought concerning the Quorum
transaction, in order that the Hospitals can provide you with an informed response in such
circumstances.” ECF No. 37-9 at PageID #: 3920. In a response directed solely to Mr. Carmody,
Ms. Sylvester stated that “[i]f you intend to make a substantive response on behalf of the CHS
Hospitals you represent, you should do so immediately.” Id. Respondent argues that this email
was insufficient to put Mr. Carmody on notice that the Union sought the information from
Respondent. ECF No. 43 at PageID #: 4371–72. This argument strains credulity. While, it is
not too fanciful to acknowledge that the recipient of an emailed request may reasonably assume
that the request is directed at himself. When, however, as in this case, Ms. Sylvester emailed Mr.
Carmody directly, asking for a response “on behalf of the CHS Hospitals [he] represent[ed],” Mr.
Carmody was clearly on notice that she sought a response from Respondent.
Morever, given the Union’s persistence in securing responses from Respondent’s
representatives—it made requests on September 21, 2015, October 21, 2015, October 30, 2015,
November 6, 2015, November 23, 2015, January 4, 2016, April 15, 2016, May 24, 2016, and July
6, 2016—it was unreasonable for Respondent to assume that the Union did not want Respondent
to tender the information. Furthermore, at a November 5, 2015 bargaining session, Respondent
informed the Union that the information was “on its way,” indicating that it was the proper party

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from which to seek the information. ECF No. 29 at PageID #: 878; ECF No. 37-9 at PageID #:
3917.
For these reasons, the Court finds that, despite being on notice of the Union’s request,
there is reasonable cause to believe that Respondent failed to respond, in violation of section
8(a)(5) and 8(d) of the National Labor Relations Act.
B. Unilateral Implementation of Benefits
In November 2015, Respondent announced that it would unilaterally implement “QHC
BenefitsPlus,” a supplemental benefit program, beginning January 1, 2016. ECF No. 37-1 at
PageID #: 3882–83; see generally ECF No. 37-14 (Affinity Medical Center Benefits Guide
2016). This program offers access to and discounts on automobile and home insurance,
long-term care insurance, and transfer of retirement plan assets in employees’ current 401(k)
plans to a new retirement plan sponsored by QHCCS, LLC, a subsidiary of QHC. ECF No. 37-1
at PageID #: 3882–84. The 401(k) transfer required a “blackout period” from January 4, 2016
through January 18, 2016, which prevented employees from changing investment allocations of
new contributions; transferring retirement funds among investment options; requesting plan loan
payouts; and making distributions and taking withdrawals. Id. at PageID #: 3884; ECF No.
37-20 at PageID #: 4022. The Union did not receive notice of these changes, and was not given
the opportunity to bargain over the changes prior to their implementation. ECF No. 37-1 at
PageID #: 3885.
“An employer may not unilaterally change its employees’ wages or other working
conditions when it is subject to the statutory duty to bargain with a designated representative of

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its employees.” 29 U.S.C. § 158(a)(1), (5); N.L.R.B. v. Allied Prods. Corp., Richard Bros. Div.,
548 F.2d 644, 652 (6th Cir. 1977) (citing N.L.R.B. v. Katz, 369 U.S. 736 (1962) and N.L.R.B. v.
McCann Steel Co., 448 F.2d 277 (6th Cir. 1971)). An employer seeking to unilaterally change
terms and conditions of employment that are mandatory subjects of bargaining must notify the
union and offer the union the opportunity to bargain over these changes. Katz, 369 U.S. at 746,
n.12. “A unilateral change does not violate the Act unless that change is material, substantial,
and significant, and has a real impact on, or causes a significant detriment to, the employees or
their working conditions.” Whitesell Corp., 357 NLRB 1119, 1173 (2011) (citing Golden
Stevedoring Co., 335 NLRB 410, 415 (2001); Outboard Marine Corp., 307 NLRB 1333, 1339
(1992), enfd. mem. 9 F.3d 113 (7th Cir. 1993)).
Respondent unilaterally offered employees access to its “QHS Benefits Plus” program
without providing the Union with notice and an opportunity to bargain over these benefits.
Respondent protests that Petitioner has not demonstrated that these benefits “play a sizeable role
in even one RN’s employment relationship with Affinity,” or that any of the nurses were harmed
by the blackout period. ECF No. 43 at PageID #: 4264–67. Employer-provided benefits are,
however, some of the most important terms of employment for many employees. Moreover,
employee discount programs and 401(k) plans are mandatory subjects of bargaining, and changes
to these benefits have a real, palpable impact on employees. Respondent cannot avoid its duty to
bargain by unilaterally implementing benefits.
Accordingly, the Court finds that there was reasonable cause to believe that Respondent
violated the Act by unilaterally implementing these benefit changes.

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C. Terminations of Michelle Hastings and Tara Magrell
On August 31, 2015, Respondent informed the Union that it intended to suspend
bargaining unit nurse, Tara Magrell. ECF No. 31-1 at PageID #: 3878. On September 3, 2016,
Respondent notified the Union that it was prepared to provide relevant information and bargain
over the suspension, but required the Union to first indemnify Respondent against future
defamation claims. Id. On November 12, 2015, Respondent informed the Union of its intent to
terminate Ms. Magrell. Id. at PageID #: 3877.
On September 2, 2015, Respondent notified the Union that it intended to terminate
bargaining unit nurse, Michelle Hastings. Id. at PageID #: 3875. Ms. Hastings was not on the
bargaining team, but supported the Union by attending meetings and events, and wearing
pro-Union buttons. Id. Again, Respondent declined to bargain without indemnification. Id. at
PageID #: 3876.
The Union rejected Respondent’s demands for indemnification, and requested
information relevant to the suspensions and terminations. Id. There is no evidence that
Respondent has provided the Union with this information, and both employees were terminated.
Respondent maintains that indemnification is necessary, citing a defamation suit over the
termination of another employee, Ann Wayt. ECF No. 16 at PageID #: 480–81; ECF No. 43 at
PageID #: 4368–69; ECF No. 55 at PageID #: 6171.
Under sections 8(a)(5) and 8(d) of the National Labor Relations Act, it is an unfair labor
practice to refuse to bargain with a union representative over mandatory subjects of bargaining.
29 U.S.C. §§ 158(a)(5), 158(d). The termination of employees is a mandatory subject of

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bargaining. See Id. at § 158(d) (specifying that “wages, hours and other terms and conditions of
employment” are mandatory subjects of bargaining).
Respondent does not provide legal authority to support its argument that fear of legal
action excuses an employer’s duty to bargain. Furthermore, the Fourth Circuit has held that an
indemnity provision is a non-mandatory subject of bargaining. N.L.R.B. v. Davison, 318 F.2d
550, 554 (4th Cir. 1963) enf’g 136 NLRB 742, 745–47 (1962). Accordingly, by insisting on an
indemnity proposal, the employer violated its duty to bargain in good faith. Id.; see also N.L.R.B.
v. Wooster Div. of Borg-Warner, 356 U.S. 342, 349 (1958) (insistence on a non-mandatory
subject, “is, in substance, a refusal to bargain about the subjects that are within the scope of
mandatory bargaining.”). Respondent’s behavior in this case is similar to that of the employer in
Davison—by insisting on indemnity, Respondent fails to bargain in good faith over the
employees’ terminations.
Therefore, the Court finds that there is reasonable cause to believe that Respondent has
violated the Act by failing to bargain in good faith over these employees’ terminations.
D. Surface Bargaining
At the October 6, 2015 bargaining session, Respondent made a comprehensive package
proposal to the Union. ECF No. 30-1 at PageID #: 2498–99, 2601–02. The Union rejected the
proposal. Id. at PageID #: 3262–64. In particular, the Union objected to the proposal’s broad
management rights clause, provisions waiving the Union’s right to bargain over modifications or
termination of health insurance and retirement benefits, and a provision granting Respondent the
right to nullify the collective-bargaining agreement and the Union’s certification if the United

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States Supreme Court invalidated neutrality agreements. Id. at PageID #: 2255, 3264–66; ECF
No. 38-1 at PageID #: 4054–55.
The Union made counter-proposals on July 6, 2016 and October 11, 2016, both of which
were rejected. ECF No. 38-1 at PageID #: 4062–65. Respondent’s negotiator informed the
Union that he was unwilling to discuss individual proposals. Id. at PageID #: 4064. After a year
and five months of refusing to bargain, Respondent made its first offer—proposing to remove a
provision related to neutrality agreements. ECF No. 56 at PageID #: 6235–36; see also ECF No.
55-1 (Respondent’s Revised Package Proposal). Respondent has not altered its stance on the
majority of the contested terms of the proposal. ECF No. 56 at PageID #: 6235–36.
Under sections 8(a)(5) and 8(d) of the NLRA, it is an unfair labor practice to refuse to
bargain with a union representative. 29 U.S.C. §§ 158(a)(5), 158(d). The Act defines collective
bargaining as
the performance of the mutual obligation of the employer and the representatives
of the employees to meet at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of employment, or the negotiation
of an agreement, or any question arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by either party[.]
Id. at § 158(d). Although parties must bargain, the Act “does not compel either party to agree to
a proposal or require the making of a concession.” Id.
An employer cannot satisfy the duty to collectively bargain by engaging in “surface
bargaining,” i.e. feigning bargaining without an intent to actually come to an agreement. To
determine whether a party is engaging in surface bargaining, the Board should looks at “the
totality of the conduct, both at and away from the bargaining table.” In Re Pub. Serv. Co. of

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Oklahoma, 334 NLRB 487 (2001) (citing Overnite Transportation Co., 296 NLRB 669, 671
(1989), enfd. 938 F.2d 815 (7th Cir. 1991) and Atlanta Hilton & Tower, 271 NLRB 1600, 1603
(1984)). The Board also considers various factors, such as “delaying tactics, the nature of the
bargaining demands, unilateral changes in mandatory subjects of bargaining, efforts to bypass the
union, failure to designate an agent with sufficient bargaining authority, withdrawal of
already-agreed-upon provisions, and arbitrary scheduling of meetings.” Regency Svc. Carts, Inc.
& Shopmen’s Local Union No. 455 Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers,
AFL-CIO, 345 NLRB 671 (2005). A delaying party need not engage in each of these factors. Id.
Instead, a party will be found to have violated the Act when “ its conduct in its entirety reflects
an intention on its part to avoid reaching an agreement.” Id. at 671–72.
In this case, Petitioner has demonstrated reasonable cause to believe that a violation of the
Act has been committed. Generally, Respondent has been unwilling to alter its October 5, 2015
package proposal. ECF No. 56 at PageID #: 6233. Although driving a hard bargain is not
enough to constitute surface bargaining, this stubbornness, combined with Respondent’s other
actions, demonstrates “an intention on its part to avoid reaching an agreement.” Regency, 345
NLRB at 671–72. For example, Respondent has insisted on a broad management rights, which
would give it unilateral control over terms and conditions of employment, and unilateral
discretion to reduce or eliminate medical and retirement benefits. See Reichhold Chemicals, 288
NLRB 69, 71 (1988) (discussing NLRB v. Herman Sausage Co., 275 F.2d 229 (5th Cir. 1960)
and A-1 King Size Sandwiches, 265 NLRB 850 (1982), in which courts found surface bargaining
when the employer was insistent on a broad management rights clause, in addition to other

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anti-bargaining behavior). Moreover, Respondent’s representative has made various assertions
indicating its reluctance to come to an agreement, insisting, for example, that it would not change
“one damn word” of its package proposal, ECF No. 54-7 at PageID #: 5169, rebuffing a
counterproposal by stating that they would not “nickel and dime” the contract, id. at PageID #:
5173, and refusing to discuss individual proposals, id.
Respondent’s actions away from the bargaining table, as described above, also indicate its
bad-faith. Respondent inappropriately insisted on an indemnification agreement as a condition to
furnishing information; refused to provide requested information; and unilaterally implemented
benefits. Furthermore, Respondent unilaterally discontinued its practice of granting annual merit
wage increases. ECF No. 6 at PageID #: 357. Although Respondent makes various efforts to
demonstrate evidence of its good faith, ECF No. 40 at PageID #: 4087, 4088, 4089–90; ECF No.
40-1 at PageID #: 4099, ¶ 3, a court does not resolve factual disputes, make credibility
determinations, or decide the merits of the unfair labor practice charges.
Respondent also argues that it refused to bargain with the Union because it did not agree
with the Regional Director’s rulings during the course of the representation proceedings and
disputed the validity of the certification. ECF No. 16 at PageID #: 472–73. Respondent
challenges the Union’s certification because it was issued during a period of time the Board
lacked the quorum required by Section 3(b) of the National Labor Relations Act. Id. Petitioner
counters that, because Respondent ultimately recognized and began the bargaining process, it has
waived its right to challenge the Union’s certification now.

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Generally, an employer that engaged in bargaining or otherwise recognizes a union
waives the right to obtain judicial review of the representation proceedings taking place before
the agency. N.L.R.B. v. Precision Indoor Comfort, Inc., 456 F.3d 636, 638 (6th Cir. 2006) (citing
Maremont Corp. v. N.L.R.B., 177 F.3d 573, 576 (6th Cir. 1999)). Challenges such as the one at
hand are not subject to such waiver requirements, however. “Challenges to the composition of
an agency can be raised on review even when they are not raised before the agency.” Hospital of
Barstow, Inc. v. N.L.R.B., 820 F.3d 440, 443 (D.C. Cir. 2016) (citing UC Health v. N.L.R.B., 803
F.3d 669 (D.C. Cir. 2015)).
Although the Board lacked a quorum at the time of the election, there is reasonable cause
to believe that the certification is valid. Although not binding on this case, the Fourth Circuit
Court of Appeals held that Regional Directors may conduct elections based on the consent of the
parties at times when the Board lacks a quorum. See N.L.R.B. v. Bluefield Hosp. Co., LLC, 821
F.3d 534, 542–44 (4th Cir. 2016). Because the parties in this case consented to the Regional
Director’s authority to issue a final decision regarding the election, the Court declines to find that
this reason excuses Respondent’s inaction.
Accordingly, the Court finds that there are substantial legal theories and sufficient
evidence to show that there is reasonable cause to find that Respondent has violated Section
8(a)(1) and (5) of the NLRA by engaging in surface bargaining.
IV. Just and Proper
Once a court has determined that there is reasonable cause to believe that a violation of
the Act has been committed, the court determines whether the requested injunctive relief is just

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and proper. Ahern, 251 F.3d at 234–35. A court must consider whether injunctive relief is
“necessary to return the parties to the status quo pending the Board’s processes in order to protect
the Board’s remedial powers under the NLRA, and whether achieving status quo is possible.”
Kobell v. United Paperworkers Intern., 965 F.2d 1401, 1410 (6th Cir. 1992) (quoting Frankel,
818 F.2d 495).
Petitioner argues that employee support has waned, highlighting “a marked decline in
union meeting attendance, the noticeable loss of core union supporters, [and] the reluctance of
union-supporting employees to step up as union leaders[.]” ECF No. 42 at PageID #: 4352; see
also ECF No. 29 at PageID #: 883–885. For example, although thirty nurses were willing to
accept leadership roles in 2012, only four nurses were willing to be union leaders in 2016. ECF
No. 29 at PageID #: 885. Similarly, although twenty to thirty employees regularly attended union
meetings in 2012, only five nurses attended the January 2016 meeting, and only three attended
the February 2016 meeting. Id. at PageID #: 885–86. Moreover, despite being certified in 2012,
the Union has been unable to sign an initial collective bargaining agreement. “Courts have found
employees to be “highly susceptible” to unfair labor practices under such circumstances.”
Calatrello v. Gen. Die Casters, Inc., No. 1:10 CV 2421, 2011 WL 446685, at *7 (N.D. Ohio Jan.
11, 2011) (citing Ahearn, 351 F.3d at 239). Indeed, employees have expressed “universal
frustration” and a “sincere belief that the bargaining process is futile and that they will never see
the benefits of collective bargaining.” ECF No. 42 at PageID #: 4352.
Respondent argues that Union support remains strong, and that the Union has engaged in
advocacy on behalf of the nurses. ECF No. 40 at PageID #: 4903. For example, the Union has

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circulated flyers with pictures of nurses, demonstrating that nurses feel comfortable openly and
publicly supporting the union. Id. In one flyer, the Union noted that nurses were prepared to
vote to authorize a strike. Id. Respondent also argues that it would be impractical to reverse the
transfer the nurses’ retirement plans from CHS to a new plan sponsored by QHCCS, LLC, a
subsidiary of Quorum Health. ECF No. 16 at PageID #: 489–90. This transfer would require a
retroactive amendment of the CHS Standard 401(k) Plan. Id. at PageID #: 490. Because only a
corporate sponsor of the CHS Plan can make amendments to the plan, and Respondent is no
longer affiliated with CHS, Respondent does not have authority to make such an amendment. Id.
In this case, the status quo is a workplace in which the Union’s reputation has not been
affected by its inability to bargain with Respondent. With the exception of the recision of
transfer of retirement plan assets, the Court finds that injunctive relief is proper. Although
Respondent protests that it is already legally obligated to bargain, and an injunction will not
change that obligation, an injunction will mandate that Respondent meet with the Union in
person. Moreover, an injunction will help prevent the erosion of employee support while the
Board renders its own decision. Additionally, the injunction will reverse most of Respondent’s
unlawful unilateral action, and facilitate the exchange of information. Because Respondent does
not have authority to undo the transfer of the nurses’ retirement plans, the Court refrains from
issuing injunctive relief on this issue. Kobell, 965 F.2d at 1410 (noting that a Court must
consider whether achieving status quo is possible).
V. Respondent’s Letter to the Court

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Respondent filed a “Letter to the Court,” informing the Court that another hearing before
an Administrative Law Judge had been conducted. Respondent specified that it “has not
requested, and does not intend to request, leave to present the Court with the record recently
developed before Judge Carter.” ECF No. 59 at PageID #: 6257. Petitioner did not file a
response to this Letter.
To the extent the Letter was meant to be a motion, it is denied. The Court determined
that it would decide this matter on the Administrative Record. Petitioner has sufficiently
demonstrated reasonable cause to believe that violations of the Act have occurred, and that
injunctive relief is just and proper. As it is not the role of the Court to resolve factual disputes,
make credibility determinations, or decide the merits of the unfair labor practice charges at this
stage, Schaub, 250 F.3d at 970, and parties have already had sufficient opportunity to present
evidence, the Court denies the presumptive motion.
VI. Conclusion
For the foregoing reasons, the Court grants the Petition for temporary injunction. Within
seven days of this Order, Respondent is ordered to take the following actions:
(a) Upon request, bargain in good-faith with the Union as the exclusive collective
bargaining representative of employees in the Unit during the interim period concerning
employees’ terms and conditions of employment and, if an understanding is reached,
embody the understanding in a written, signed agreement.
(b) Furnish the Union with the information it requested concerning the QHC spinoff
including:

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(i) QHC’s address;
(ii) a list of QHC’s current or proposed Board of Directors or Trustees;
(iii) names and contact information of QHC’s CEO, HR Director and Director of
Labor Relations;
(iv) an organizational charge showing the directors, officers and key employees of
QHC;
(v) copies of QHC work rules, employment manuals as well as other policies
and/or codes of conduct that apply or will apply to bargaining unit members at
QHC hospitals;
(vi) a list of all persons with authority to review, modify or rescind the policies
listed above, along with their job titles and office addresses;
(vii) current and/or proposed staffing plans for QHC operated facilities;
(viii) a list and contact information of all persons with authority to review, modify
the staffing plans;
(ix) a complete description of health, dental, short and long term disability and life
insurance plans and benefits for nurses at those facilities that CHS intends to
transfer to QHC;
(x) a complete description of retirement benefits at those facilities that CHS
intends to transfer to QHC;
(xi) copies of any agreements for administrative services, including those related
to the administration of payroll and benefits between QHC and CHS;

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(xii) a list of all CHS hospitals that will be party of the proposed QHC spinoff, as
well as a list of their directors, officers and key employees.
(c) Furnish the Union with the requested information pertaining to the discharge of
Michelle Hastings and Tara Magrell as set forth in the Union’s September 2, 2015 and
November 13, 2015 requests, and, on request, bargain in good faith with the Union over
the discharges of Magrell and Hastings;
(d) Upon request from the Union, rescind the offer of employee group discounts offered
through QHC Benefits Plus, and the offer for long term care insurance to employees in
the Unit;
(e) Upon request, bargain in good faith with the Union on a schedule providing for
good-faith bargaining for not less than twenty-four (24) hours per month and not less than
six (6) hours per session, or another schedule to which Respondent and the Union have
mutually agreed, until they reach a complete collective bargaining agreement or a
good-faith impasse in bargaining;
(f) Post copies of the District Court’s Order at the Respondent’s Massillon, Ohio facility
in all locations where other notices to employees are customarily posted, maintain these
postings during the Board’s administrative process free from all obstructions and
defacement and grant to agents of the Board reasonable access to these facilities in order
to maintain compliance with the posting requirements;
(g) Within ten (10) days of the District Court’s interim Order, hold a meeting or meetings
at Respondent’s facility, scheduled to ensure the widest possible audience, at which a

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responsible management official shall read, or at Respondent’s option, a Board Agent
shall read in the presence of a responsible management official, the District Court’s
Order;
(h) Within (20) days of the issuance of the District Court’s Decision and interim Order,
file with the Court and serve a copy upon the Regional Director of Region Eight of the
Board, a sworn affidavit from a responsible official of Respondent, setting forth with
specificity, the manner in which Respondent has complied with the terms of the Court’s
Order, including how and when it posted the documents required by the Order.

IT IS SO ORDERED.

September 5, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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