February 18, 2026|Franchise Frontlines
February 18, 2026 | National Labor Relations Board, Division of Judges | Administrative Law Judge Decision
Executive Summary
In a lengthy administrative decision, Administrative Law Judge Benjamin W. Green of the National Labor Relations Board found that Ascension Providence Rochester Hospital committed multiple unfair labor practices during negotiations with Local 40 of the Office and Professional Employees International Union. The dispute arose during bargaining for successor collective-bargaining agreements covering registered nurses and radiology technologists. The union alleged that the hospital interfered with protected activity, failed to provide requested bargaining information, unilaterally used non-unit nurses to perform bargaining-unit work, and refused to immediately reinstate employees following an unfair labor practice strike. The hospital argued that many of the challenged actions were permissible under existing contract language or justified by operational needs. The ALJ largely sided with the union, concluding that the hospital violated Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act through a series of actions affecting employee rights and bargaining obligations.
Relevant Background
Ascension Providence Rochester Hospital operates a hospital in Rochester, Michigan as part of the broader Ascension healthcare system. Two bargaining units at the facility—registered nurses and radiology technologists—were represented by Local 40 of the Office and Professional Employees International Union. The parties were negotiating successor collective-bargaining agreements after the expiration of prior agreements governing both units.
During negotiations, the union filed multiple unfair labor practice charges alleging that the hospital was interfering with protected union activity and failing to bargain in good faith. The allegations included claims that management issued directives restricting employees’ ability to criticize the employer, barred union representatives from conducting informational meetings in public areas of the hospital, and threatened to call police to remove employees engaged in union activity. The union also asserted that the hospital refused to provide requested information relevant to bargaining, unilaterally expanded its use of “short-term option” nurses to perform bargaining-unit work, and improperly delayed reinstating employees following a strike called in response to alleged unfair labor practices.
The hospital denied the allegations and asserted several defenses. Among other arguments, it contended that certain workplace directives were aimed at preventing harassment and maintaining professionalism, that its use of non-unit nurses was authorized under the collective-bargaining agreement, and that delays in reinstating striking employees were justified by contractual obligations to temporary replacement workers.
Decision
The ALJ concluded that the hospital violated the National Labor Relations Act in several respects. First, the decision found that certain management directives and communications unlawfully restricted protected employee activity. For example, management communications instructing employees to avoid “negative comments” about the hospital or to maintain a uniformly positive attitude were deemed overbroad because employees could reasonably interpret them as prohibiting protected discussions about workplace conditions. The ALJ emphasized that employees retain the right under Section 7 of the Act to criticize their employer and discuss workplace concerns with coworkers.
The decision also held that the hospital unlawfully interfered with union activity by ordering off-duty employees and union representatives to leave the hospital lobby during an informational “Lobby Day” event and threatening to call law enforcement if they refused. Because the lobby was generally open to the public and the activity did not disrupt patient care or hospital operations, the ALJ concluded that prohibiting such activity violated longstanding Board precedent protecting employee solicitation in nonworking areas during nonworking time.
The ALJ further found violations arising from the hospital’s failure to furnish requested information to the union during bargaining. Several requests sought data regarding wages, staffing levels, and the use of non-unit personnel. Because such information was relevant to the union’s representational duties—including monitoring compliance with the existing agreement and developing bargaining proposals—the hospital’s failure to provide the information constituted an unlawful refusal to bargain.
A significant portion of the decision addressed the hospital’s use of “short-term option” registered nurses—temporary employees paid substantially higher hourly rates than bargaining-unit nurses. The ALJ concluded that the hospital’s expanded use of these workers to perform bargaining-unit work constituted a unilateral change to terms and conditions of employment. Although the hospital argued that its actions were authorized by contract language permitting the use of contingent workers, the ALJ determined that the collective-bargaining agreement did not clearly grant the employer the unilateral right to create and deploy this new category of employees without bargaining.
Finally, the decision held that the hospital violated the Act by failing to immediately reinstate employees following a strike that was at least partially motivated by alleged unfair labor practices. Because unfair labor practice strikers are entitled to immediate reinstatement upon an unconditional offer to return to work, the hospital’s delay—based on contractual commitments to replacement workers—did not excuse its obligation under the Act.
Although the ALJ found numerous violations, the decision rejected the union’s claim that the hospital engaged in overall bad-faith bargaining. The ALJ concluded that the record did not demonstrate that the employer intended to avoid reaching a collective-bargaining agreement altogether, even though certain tactics during negotiations were unlawful.
Looking Forward
This decision illustrates how multiple workplace policies and bargaining practices can collectively create significant labor-law exposure during contract negotiations. Even policies framed as promoting professionalism or positive workplace culture may violate the Act if employees could reasonably interpret them as restricting protected discussions about working conditions.
The ruling also underscores the importance of carefully evaluating contractual language before relying on it to justify unilateral operational decisions. Employers that expand the use of non-unit personnel or contractors during bargaining must be able to point to clear contractual authorization or risk allegations that they implemented unlawful unilateral changes.
For franchisors and other multi-unit systems, the decision highlights a broader operational lesson: system-wide directives, policies governing employee communications, and staffing practices must be evaluated carefully in environments where workers are represented by a union or are engaged in organizing activity. Policies that appear neutral on their face—such as requirements to avoid negative comments about the brand or directives restricting where employees may discuss workplace concerns—can quickly become the basis for unfair labor practice claims.
In addition, the decision demonstrates how the Board continues to treat failures to provide bargaining information as a serious violation of the duty to bargain. Employers engaged in negotiations should anticipate requests for operational and wage data and ensure that internal processes exist to respond promptly and completely.
This article is based solely on the opinion of the Court in this matter. The author has not conducted any independent investigation into the facts. For the avoidance of doubt, each statement related to the law and facts in this article is drawn from the Court’s opinion in this case.
Thomas O’Connell is a Shareholder at Buchalter LLP and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
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