On November 16, 2023, a federal court in Colorado issued a lengthy opinion granting in part a petition for a temporary injunction pursuant to Section 10(j) of the National Labor Relations Act (the “Act”). Lomax v. Longmont United Hospital, No. 23-cv-02297, ECF No. 40 (D. Colo. Nov. 16, 2023). Specifically, the court ordered the hospital to cease and desist from excluding registered nurses who were part of a certified bargaining unit from future system-wide or normal incremental wage or benefits increases following certification. Importantly, however, the court did not require any action by the hospital based on past increases, ordering only prospective relief.
In April 2021, the National Nurses Organizing Committee/National Nurses United, AFL-CIO (the “Union”) filed a petition to represent a bargaining unit of approximately 240 nurses. A year later, in April 2022, the National Labor Relations Board (the “Board”) certified the Union as the nurses’ exclusive bargaining representative.
Throughout the election and certification process and after, the hospital announced four separate wage and/or benefits increases to employees across its network: in September 2021, November 2021, March 2022, and October 2022. As a result, three wage increases occurred after the representation petition was filed but before the Union was certified as the exclusive collective bargaining representative. The fourth wage increase occurred after certification. Together, these increases ranged from across-the-board pay adjustments to market adjustments for some positions, as well as some additional changes.
In each communication, the hospital noted that the nurses were specifically excluded from the wage increase because the hospital was required to maintain the status quo until the pending matters with the Board were resolved. Stated differently, the status of the Union’s certification as the exclusive collective bargaining representative was in question during the time the wage increases were not implemented, as was the lawfulness of withholding the increases. As a result, there was no clear bargaining obligation with the Union at the time, although the obligation to maintain the status quo existed under applicable Board law. The hospital interpreted the status quo to mean the wage rate at the time the petition was filed, a notion supported by applicable law.
As a result of the hospital’s decision to exclude the nurses from the wage increase provided to other hospital employees, the Union filed an unfair labor practice charge against the hospital on March 3, 2022. The charge went to complaint and, ultimately, to hearing before an administrative law judge (ALJ). The ALJ issued a decision on March 28, 2023, finding that by implementing wage and/or benefits increases to employees across the board—but expressly excluding the represented nurses from those increases—the hospital violated Section 8(a)(1) and 8(a)(3) of the Act. The validity of the hospital’s refusal to include the nurses in the prior wage and benefits is still pending before the Board for review.
On September 7, 2023, however, a Board regional director filed a complaint and petition for temporary injunction pursuant to Section 10(j) of the Act in the District of Colorado. The Region asked the court to issue an order: (1) restraining the hospital from further informing nurses they would not receive the increases based on their union involvement; (2) requiring the hospital to implement the prior wage and benefits improvements to the nurses and include them in the increases going forward; and (3) compelling the hospital to hold a meeting to read the order issued by the court, post the order, and distribute it via email.
The court ultimately ordered the hospital to cease and desist from excluding the nurses from future systemwide or normal incremental wage or benefits increases from the date of the order going forward. The court did not, however, require the hospital to prospectively pay increases that were previously granted. This is a critical distinction, as the court strictly read Section 10(j) to permit it to prevent future violations inconsistent with a prior ALJ order, without taking a broad view to remedy past allegations of harm. The court further ordered the hospital to post the notice and distribute it to employees, which is a common Board remedy, but stopped short of requiring the hospital to hold a meeting to read the order.
The Longmont decision reminds labor practitioners that maintaining the status quo for represented employees following certification does not necessarily mean those employees remain frozen in the position at the time the petition was filed. Rather, the status quo is dynamic, and specifically excluding represented employees from across-the-board changes risks violating Section 8(a)(1) and Section 8(a)(3) of the Act. In addition, the Longmont decision reminds labor practitioners that Section 10(j), while an “extraordinary remedy,” remains available to the Board.
Employers facing petitions or post-certification challenges would be wise to consult experienced labor practitioners to discuss the risks of changing—or withholding changes—to the terms and conditions of employment for those impacted by a petition.
