Metropolitan News-Enterprise


Tuesday, November 1, 2011


Page 3


Ninth Circuit Upholds Injunction in Local Hospital Labor Dispute


By a MetNews Staff Writer


A U.S. district judge did not abuse his discretion in granting a preliminary injunction requiring the new owner of a local hospital to recognize a nurses union certified under the previous ownership.

Judge Otis D. Wright of the Central District of California gave proper deference to the findings of the regional director of the National Labor Relations Board when he issued the injunction against Avanti Health Systems, Inc., Judge Stephen Reinhart wrote for the Ninth Circuit. There was also sufficient evidence of the potential for irreparable harm to support the rare grant of preliminary injunctive relief in a refusal-to-bargain case.

The California Nurses Association sought the NLRB’s assistance following Avanti’s acquisition of Community Hospital of Huntington Park. Prior to that acquisition, the hospital was owned by Karykeion, Inc., and its workforce at one point included more than 60 registered nurses represented by the CNA.

Avanti, through a subsidiary that it formed specifically to purchase and manage the hospital, agreed to buy it out of bankruptcy, on condition that a collective bargaining agreement between Karykeion and the CNA, as well as an agreement with the union representing janitors, were set aside.

That being accomplished, the subsidiary, CHHP Holdings, took control of the hospital in March of last year. In refusing to recognize the CNA as the bargaining agent for the RNs, it insisted that it was not required to do so under the “successor employer” provision of the National Labor Relations Act.

CHHP contended that the union did not recognize a majority of the RNs as of the date of acquisition. The regional director disagreed, noting that the prior owner maintained an “employee register” identifying every RN and indicating whether the employee was a union member.

The employee register dated the day before the takeover, the director noted, showed that the hospital had 30 union member RNs. Since the payroll for that period reflected a total of 47 RNs, the director concluded, the union represented a majority.

Those findings, Reinhardt wrote for the Ninth Circuit, were sufficient to support the district judge’s conclusion that the NLRB will likely prevail on the merits.

As for the issue of irreparable harm, Reinhardt cited the economic impact on the nurses, the loss of non-economic benefits associated with collective bargaining, the threat to “industrial peace” resulting from a lack of good faith bargaining, and the unfair potential for diminishment of support for the union.

The judge also rejected the argument that CNA could have avoided the asserted harms by seeking a new election. As a certified union, Reinhardt said, it was “entitled to a presumption of majority support.”

Judges Kim Wardlaw and Marsha Berzon joined in the opinion.

The case is Small v. Avanti Health Systems, LLC,  11-55563.


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