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Court Upholds Hospital's Non-Union Hiring

By William Vogeler, Esq. on January 27, 2017 | Last updated on March 21, 2019

Reversing a decision by the National Labor Relations Board, a federal appeals court has upheld a hospital group's preference for hiring non-union workers at its non-union hospitals.

The First Circuit Court of Appeal said the NLRB did not have substantial evidence for its finding that the hospital group unfairly preferred non-union workers. The court acknowledged that the hospital group also had a policy preferring union workers at its unionized hospital.

The court said the employer's desire to treat its union and nonunion employees and "even-handed" way negated an inference that the policy was motivated by union animus.


The case arose after Southcoast Hospitals Group, Inc. formed through a merger of three hospitals. One of the hospitals had a union workforce, and the union's collective-bargaining agreement granted members there a hiring preference when filling union positions.

In an effort to produce more even-handed hiring practices across its three hospitals, the court said, Southcoast adopted a policy that grants nonunion employees a similar hiring preference for nonunion positions. The union then sued, contending that the policy discriminated against union members in violation of the National Labor Relations Act.

In a split decision, the NLRB said the policy violated the union members rights. The appellate court reversed and remanded.

One for the Dissent

The First Circuit sided with the lone NLRB dissenter who said the board could not prove that a nonunion member would have an advantage over union workers because the available positions at the various hospitals were about the same.

"Because the ratio of covered positions to covered employees is substantially the same under both (the non-union policy) and the union hiring policy, one cannot say that a nonunion employee is necessarily more likely than a union employee to obtain a successful transfer simply because (non-union policy) covers more positions," the court said.

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