In a decision issued this past Monday, National Labor Relations Board Administrative Law Judge Susan A. Flynn ruled that Wilkes-Barre General Hospital violated the National Labor Relations Act by failing to pay length-of-service based raises to nurses working at its facility in Wilkes-Barre, Pennsylvania. The case, styled Wilkes-Barre Hospital Company, LLC, arose after the Hospital’s most recent collective bargaining agreement (CBA) with its nurses expired on April 30, 2013. The nurses, represented by the Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP), contended that despite the expiration of the CBA, the Hospital was still required to pay out length-of-service raises. Those raises were paid out every year in January if a nurse moved to a new classification based on the number of years he or she had been employed as a nurse. When the Hospital refused to issue the length-of-service raises to the nurses this past January, PASNAP filed unfair labor practice charges with the Board, alleging that the Hospital violated sections 8(a)(1) and 8(a)(5) of the Act.

The Hospital put forward a notable preliminary defense, arguing that the Regional Director did not have the authority to issue a complaint in this matter. Because the Board was without the authority to act from January of 2012 to August of 2013 since it lacked a quorum according to the Noel Canning decision, any actions taken by the quorumless Board during that time were invalid, including the appointment of Regional Director Walsh. Not surprisingly, the ALJ gave this argument short shrift. Consistent with holdings from U.S. District Courts (which can be found here and here) the decision explained:

The power to appoint Regional Directors during [the quorumless] period was delegated to the General Counsel. The Board had issued an Order Contingently Delegating Authority to the Chairman, the General Counsel, and the Chief Administrative Law Judge that was effective [prior to the quorumless period].

Accordingly, per the ALJ, the General Counsel had the authority to appoint Regional Directors.  Since Regional Director Walsh was appointed by the General Counsel during the quorumless period, Regional Director Walsh’s appointment was valid.  The ALJ answered a further question that @LRToday raised back in August of this year: namely, whether the Board’s August 4, 2014 ratification of all “administrative, personnel, and procurement matters taken by the Board” during the quorumless period was effective. Judge Flynn answered that the ratification action was appropriate, which further solidified Regional Director Walsh’s authority to issue the Complaint.

Walsh was selected by the General Counsel and, in approving the selection without dissent, no Board Member requested full-Board consideration of the decision [to ratify the quorumless Board’s actions].

The ALJ then turned to the merits of the case and determined that the Hospital had a statutory obligation to pay the raises. The decision explained that an employer violates Section 8(a)(5) of the Act if it changes employees’ wages without first providing the union with notice and the opportunity to bargain. This tenet of labor law still applies despite the expiration of a CBA. In fact, in situations where the CBA has expired, “the employer is obligated to maintain the status quo as to mandatory subjects of bargaining unless the parties have bargained to impasse.” Here, the parties had indisputably not bargained to impasse before the Hospital refused to pay the length-of-service raises in January 2014.

Accordingly, the ALJ ruled that the Hospital had violated the Act by failing to pay the nurses their length-of-service based raises in January of 2014. Nurses who moved from one experience level to the next were thus granted the wage increase they should have received in January of 2014. The Hospital was also required to post a notice stating 1) that it would not unilaterally discontinue pay increases and 2) that it would bargain with PASNAP before making any changes to the nurses’ wages, hours, or terms and conditions of employment.

This decision is noteworthy for two reasons. First, the ALJ accepted the Board’s August 4, 2014 ratification of all acts taken by the quorumless Board out of hand.  Thus, arguing that a Regional Director who was appointed during the quorumless period did not have the authority to issue a Complaint will likely not get far with ALJs or the Board. Second, it is a good reminder that employers must maintain the status quo by continuing any past practice of regularly scheduled wage increases even after the expiration of a collective bargaining agreement.  Failing to do so could bring about unfair labor practice charges and unforeseen monetary liabilities.