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Hardy-Mahoney v. Prime Healthcare Services

United States District Court, D. Nevada

May 18, 2017

VALERIE HARDY-MAHONEY, Regional Director of the Thirty-Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner,



         I. SUMMARY

         Section 10(j) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., authorizes district courts to grant temporary injunctions that are “just and proper” pending the National Labor Relations Board's (“NLRB” or “the Board”) resolution of unfair labor practice disputes. See 29 U.S.C. § 160(j). Before the Court is the Regional Director of the 32nd Region of the NLRB's petition for interim injunctive relief pursuant to section 10(j) against Respondent Prime Healthcare Services d/b/a Saint Mary's Regional Medical Center, Reno (“Petition”). The Court has reviewed Petitioner's brief (ECF No. 3), Respondent's response (ECF No. 17), and Petitioner's reply (ECF No. 19).

         The Court heard oral argument on May 8, 2017. (ECF No. 20.) At the conclusion of the hearing, the Court ordered the parties to file supplemental briefs concerning its authority to narrow the relief sought by Petitioner pending the initial ruling of the Board's Administrative Law Judge (“ALJ”). The Court has reviewed the supplemental briefs (ECF Nos. 22, 23).

         For the reasons discussed below, the Petition is denied.


         The following facts are taken from Petitioner's brief and accompanying exhibits. (ECF Nos. 3, 3-1.)

         This Petition involves two charges of unfair labor practices brought pursuant to sections 8(a)(1) and 8(a)(3) of the NLRA, 29 U.S.C. §§ 158(a)(1) & (a)(3). The California Nurses Association/National Nurses Organizing Committee/National Nurses United (collectively, “the Union”) filed the first charge in Case 32-CA-157381 (“381 Case”) on August 5, 2015 after Hospice Nurse Johna May (“May”) was suspended. (ECF No. 1 at 3.) The Union subsequently amended the charge twice, on August 21, 2015, and September 3, 2015, alleging that May was terminated in retaliation for engaging in or supporting protected activities on behalf of the Union. The Union filed its second charge in Case 32-CA-162431 (“431 Case”) on October 21, 2015, after Respondent purportedly solicited and promised to remedy the hospice nurses' grievances, granting wage increases and other changes to the hospice nurses' terms and conditions of employment. This charge was subsequently amended on January 1, 2016, and September 27, 2016. On December 29, 2016, the two cases were consolidated, and a Consolidated Complaint ensued. (Id. at 4.) A portion of the Consolidated Complaint was withdrawn via a February 22, 2017, order. On January 11, 2017, Respondent filed its Answer to the Consolidated Complaint. The initial administrative hearing is scheduled for June 20, 2017. (Id. at 5.)

         The 381 Case arises from May's termination after an August 3, 2015, hearing in Case 32-RC-156669 (“669 Case”), which involves the Union's petition to include 24 hospice nurses in the existing bargaining unit[1] of the Union at St. Mary's Regional Medical Center in Reno (“Medical Center”). (ECF No. 3-1 at 4, 57.) At this hearing, the Union's counsel, Micah Berul (“Berul”), marked three exhibits for identification. One of the exhibits, an email, contained the personal health information (“PHI”) of a patient, including the patient's name, medical condition, and date of birth. (Id. at 5; ECF No. 1 at 5.) At this point, counsel for Respondent, Mary Schottmiller (“Schottmiller”), and Berul spoke privately and off the record.[2] Schottmiller told Berul that Respondent would have to terminate May for disclosing PHI unless the Union withdrew the Representation Petition. (ECF No. 3-1 at 6.) Berul disputed whether May had been the one to give him the email and also told Schottmiller that Respondent had violated HIPAA by sending this email with PHI to fifteen recipients, an unnecessarily excessive number. (Id. at 6-7.) Once back on the record, Berul withdrew the email at issue and requested that all references to it in the transcript be stricken. (Id. at 7.) Nonetheless, Schotmiller informed Berul that Respondent was going to terminate May and was going to report Berul and John Welsh, the Union representative, for a HIPAA violation. (Id. at 9.) On August 5, two days after the hearing, Respondent suspended May while Respondent conducted an investigation. (Id. at 10; ECF No. 1 at 5.) Respondent terminated May on August 11. Before the August 3 hearing, May had participated in activities in support of and on behalf of the Union. (ECF No. 3-1 at 30-31.)

         The 431 Case arises from Respondent's redress of hospice nurse complaints concerning wages and benefits, which occurred after May's termination. On August 19, 2015, several hospice nurses approached Piper Gals (“Gals”), the Director of Hospice at the Medical Center. (ECF No. 3 at 13.) Several days later, Gals met with a hospice nurse and instructed the nurse to email the other hospice nurses' requests to her. This list of requests included: “(1) a yearly cost of living raise; (2) continuing education reimbursement for 24 hours of educational credits per year; (3) being placed on the same pay scale as the other registered nurses working for Respondent; (4) shift-differential pay for working evenings, nights, weekends, and in the pediatrics unit; (5) being paid at the regular rate for taking calls during the 5:00 PM to 8:00 PM shift; (6) being paid for 40 hours in a work week if some of those hours were from meetings or education time; (7) splitting weekend 12-hour shifts; (8) hiring an admitting nurse to help with weekend admissions; (9) phone coverage for Saturdays; (10) nursing oversight for referrals and admissions; (11) placing someone in the nursing office to assess acuity, caseloads, and nurse coordination; (12) ending the practice of hospice nurses finding their own coverage when they are sick and cannot work their shift; and (13) ending the practice of night shift covering home health patients during the night.” (Id. at 13.)

         On September 14, 2015, Gals met with about 13 hospice nurses and informed them that she would be taking four of the nurses' requests to management. (Id. at 14.) These requests included a 2-3 percent cost of living increase, a continuing education reimbursement, putting hospice nurses on the same pay scale as Respondent's other Union represented nurses, and providing a shift differential. On October 6, 2015, Gals held a meeting with all hospice nurses to inform them that Respondent had granted a wage increase, 24 hours of continuing education units, shift differential, and had agreed to perform a wage review to evaluate whether the hospice nurses were on the correct wage scale.[3]

         The next month, November 2015, several hospice nurses collectively sent a letter (“November 2015 Letter”) to the Union's representative, Jeff Welsh (“Welsh”), stating that they were no longer interested in the Union given that Respondent had met their needs. (ECF No. 3-1 at 134-35.) Welsh then stopped all organizing activities for the hospice nurses. (Id. at 135.)

         In the meantime, on August 14, 2015, the ALJ dismissed the petition in the 669 Case. (ECF No. 3-1 at 56-64.) The Board reversed and remanded the decision for further consideration. (Id. at 66.) On August 9, 2016, the ALJ issued its remand decision, overturning its prior findings and issuing a direction of election. (Id. at 65-74.)

         On August 20, 2016, Welsh emailed the hospice nurses to let them know that the Regional Director had directed that an election take place. (Id. at 135.) He also called some of the hospice nurses to tell them the same news. Only one hospice nurse answered his call on August 31, 2016, to inform him that she was no longer interested in joining the Union and that, as far as she knew, the ...

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