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🗞️ NLRB Judge Rules Michigan Hospital Violated Federal Labor Law in Dispute with Nurses Union

A federal labor judge found Ascension Providence Rochester Hospital committed 10 violations of the National Labor Relations Act during a contract dispute with the union representing its nurses and radiology technologists.

onthelaborfront

onthelaborfront

— 6 min read
🗞️ NLRB Judge Rules Michigan Hospital Violated Federal Labor Law in Dispute with Nurses Union

In a 67-page decision dated February 18, 2026, National Labor Relations Board (NLRB) Administrative Law Judge Benjamin W. Green found that Ascension Providence Rochester Hospital in Rochester, Michigan violated federal labor law in ten separate instances during a prolonged contract dispute with OPEIU Local 40, the union representing the hospital's registered nurses (RNs) and radiology technologists (RTs).

The ruling consolidated 13 charges filed between August 2022 and January 2024, arising from negotiations for successor collective-bargaining agreements for both units — a process that spanned more than 40 bargaining sessions over roughly two years. In September 2023, employees in both units conducted a three-day strike that they characterized as a response to the hospital's alleged unfair labor practices. The hospital disputed that characterization and maintained throughout the proceedings that it had bargained in good faith.

Overbroad Workplace Directives: In February 2023, Imaging Services Manager Amber Matthews distributed a set of "Staff Expectations" to employees at the hospital's Breast Center. Among other provisions, the document prohibited "negative comments" about Ascension, required staff to "remain positive at all times," and barred comments expressing unwillingness to perform certain tasks. The hospital stated the directives were a response to a reported bullying complaint involving union activity. Judge Green applied the standard set in Stericycle, Inc., 372 NLRB No. 113 (2023), which evaluates workplace rules from the perspective of an economically dependent employee who might consider engaging in protected activity. The judge found several provisions presumptively unlawful for chilling employees' Section 7 rights, and determined the rules could have been more narrowly tailored to address bullying without restricting protected activity.

Lobby Access and Confidentiality Directives: On August 21, 2023, Head of Security Brian Kirk directed off-duty union representatives to leave the hospital's public lobby during a scheduled union informational meeting, threatening to contact the Oakland County Sheriff if they did not comply. That same day, a facilities coordinator — acting on direction from hospital administrators — rescinded a conference room reservation made by a union steward, citing a policy against union business on hospital premises. Separately, in September 2023, an HR representative instructed employees not to discuss an internal investigation with anyone — a directive the judge found unlawful because it lacked a time limit and remained in effect even after the investigation concluded. Under Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978), hospitals generally may not prohibit employee union activity in public areas unless they can demonstrate a specific disruption to patient care — a showing the hospital did not make.

Off-Premises Conduct: In April 2023, Hospital Director of Pharmacy Lindsey Schwalbach encountered two union stewards distributing rally materials at a nearby restaurant. According to testimony, Schwalbach took a poster from one steward and stated that if employees stopped their union activities, they would receive the wage increase they sought. The judge found that comment constituted both an implied threat and an unlawful promise of a benefit conditioned on ceasing protected activity, applying NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). The hospital did not contest the factual account but disputed its legal characterization.

Failure to Reinstate Strikers: Following the conclusion of the three-day ULP strike on September 14, 2023, the hospital did not permit striking employees to return to work until September 15, citing minimum-hours guarantees in its contract with strike-staffing agency ProLink. The judge rejected this justification, relying on Alaris Health at Castle Hill, 367 NLRB No. 52 (2018), which held that an employer whose own unlawful conduct contributed to a strike may not delay reinstatement of ULP strikers to fulfill replacement staffing obligations.

Information Request Failures: The judge found the hospital failed to provide information the union had requested on multiple occasions between June 2022 and February 2023. Those requests covered topics including the hospital's use of contingent and per diem nurses, individual RN hours and discipline records, and wage data from other Detroit-area Ascension hospitals. The hospital argued its labor relations representative had been overwhelmed by the volume of requests, but the judge found that a complete failure to produce any responsive materials — even after charges were filed — could not be characterized as an inadvertent oversight. The judge also found that the union was not obligated to repeatedly follow up before the hospital's duty to respond was triggered.

Short-Term Option Nurses: The most financially consequential finding concerned the hospital's use of "Short-Term Option" (STO) RNs. These workers, paid $75–$100 per hour under individual contracts, were used to fill nursing shifts that unit employees had not selected. The hospital expanded STO use from approximately 5 workers in July 2021 to 99 by August 2022. The hospital argued the practice was authorized by the existing collective-bargaining agreement, which referenced "contracted or agency nurses" in its definitions. Judge Green disagreed, finding the contractual language did not clearly and unmistakably authorize unilateral STO use — the standard required under the MV Transportation framework the judge applied. The violation was found to have commenced on April 17, 2022, the start of the applicable six-month limitations period, and the remedy may require the hospital to compensate unit employees for lost earning opportunities. Estimates of the hospital's total expenditures on STO and agency nurses have ranged into the millions of dollars.

Allegations Dismissed: The judge dismissed two allegations. The hospital's decision not to provide employees with Thanksgiving turkeys in 2022 and 2023 — a practice dating to at least 1997 — was found to be the discontinuation of a gift rather than a change in a term or condition of employment, following Benchmark Industries, Inc., 270 NLRB 22 (1984). The judge also declined to find overall bad-faith bargaining, concluding that while the hospital engaged in conduct that disadvantaged the union at the table, the record did not support a finding that it was seeking to avoid reaching an agreement entirely, as opposed to pursuing a more favorable one.

The decision is subject to exceptions before the full NLRB Board and is not yet final. The hospital has since changed hands: Ascension completed the sale of its Southeast Michigan facilities to Henry Ford Health in October 2024, and the facility now operates as Henry Ford Rochester Hospital. The same union conducted an additional work stoppage at the renamed facility in June 2025, reflecting that the labor relationship between employees and management remains unsettled.

Key Points

  • An NLRB Administrative Law Judge found 10 violations of the National Labor Relations Act against the hospital, spanning Sections 8(a)(1), 8(a)(3), and 8(a)(5).
  • Overbroad "positivity" directives issued by a hospital manager were found to unlawfully restrict employees' Section 7 rights under the 2023 Stericycle standard.
  • The hospital's blanket prohibition on union activity on campus — applied to the public lobby, conference rooms, and an off-campus exchange — was found to exceed lawful employer workplace policy limits.
  • A hospital director's comments at a local restaurant, linking wage increases to the cessation of union activity, were found to constitute both an unlawful promise and an implied threat under settled NLRB precedent.
  • The hospital did not permit striking employees to return to work for one day after the strike's designated end, citing a replacement staffing contract — a defense the judge rejected.
  • The hospital failed to respond to multiple union information requests between June 2022 and February 2023; the judge declined to accept the explanation that the failures were accidental oversights.
  • The unilateral use of STO nurses at pay rates above those in the collective-bargaining agreement was found to violate the statutory duty to bargain, with potential make-whole liability for affected unit employees.
  • The judge dismissed allegations regarding the Thanksgiving turkey practice and overall bad-faith bargaining, finding those claims unsupported by the evidentiary record.
  • The hospital was sold to Henry Ford Health in October 2024 and rebranded; labor disputes at the facility have continued, including a June 2025 work stoppage.
  • The ALJ decision is not yet final and remains subject to review by the full NLRB Board if either party files exceptions.

Primary Source Author: Administrative Law Judge Benjamin W. Green

Primary Source: Ascension Providence Rochester Hospital and Local 40, OPEIU, AFL-CIO, JD-11-26, NLRB Division of Judges (February 18, 2026)

Primary Source Link: https://www.nlrb.gov/case/07-CA-301250

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