In 1987, the NLRB held that a newspaper did not have to bargain with a union over its ethics policy, on the grounds that ensuring public confidence in its news reporting was a “core function” of the paper. Peerless Publications, 283 NLRB 334 (1987). In 2006, Virginia Mason Hospital in Seattle unilaterally implemented an infection control policy designed to prevent the spread of the flu. Among other things, it required nurses who had not been vaccinated to wear a surgical mask or take antiviral medications. The union filed an unfair labor practice charge and the Board’s General Counsel issued a complaint.
An Administrative Law Judge found that there was “little if anything more central to the Hospital’s ‘entrepreneurial purpose’ than its attempt to keep its patients free of the influenza virus” and threfore dismissed the complaint. The Board, in a 2-1 decision by Chairman Liebman and Member Pearce, with a dissent by Member Hayes, found that Peerless depended upon the Constitutional principle of freedom of the press and there was no such principle involved in hospital infection control. The majority said that the Peerless Board was “mindful of” and to some extent influenced by the First Amendment implications of limiting a newspaper’s control over ethical standards for journalists. It then converted that mindfulness into the basis for the Peerless decision and distinguished the Hospital’s concern over the health of its patients as having no Constitutional dimension. Hence, there was no Constitutionally-based core purpose to influenza control that excused the hospital from having to bargain. The Board remanded the case to the ALJ for consideration of other defenses raised by the hospital.
As noted in a previous post, Chairman Liebman’s term has expired and she is no longer on the Board. Member Pearce has been named the Chairman. The Board is now operating with three members–Chairman Pearce, Member Hayes and Member Becker. Member Hayes is the sole Republican on the Board and is likely to be dissenting from more cases in the future. In the meantime, unless reversed, the Virginia Mason case is likely to spell the effective end to the “core purpose” exception to the duty to bargain.