Board Upholds Job Preference for Unionized Workers While Finding Job Preference for Non-Union Workers Unlawful

A hospital system had one unionized hospital with about 215 employees represented by the Service Employees International Union (SEIU) while there were over 5,000 unrepresented employees throughout the system. The hospital and the SEIU had a collective bargaining agreement that gave union employees a preference over non-union employees in hiring and transferring to open bargaining unit positions at the unionized hospital. The hospital also maintained a policy that gave non-union employees a hiring preference at the two non-union facilities. However, the policy left open the possibility that union employees could be given the same preference as non-union employees at the non-union hospitals if the union gave up its preferential hiring at the unionized hospital.

This policy seems to make perfect sense – union employees have a job preference at the unionized hospital and non-union employees have a job preference at non-unionized facilities – but the National Labor Relations Board disagreed. Even Board Member Miscimarra’s dissent noted that the policy was aimed at fostering equity in a generalized sense among all potential transfer candidates.

Unfortunately, the Board found that the hospital’s desire to “level the playing field” was not a legitimate and substantial business justification for its policy. The Board stated that non-union employees received a comparatively greater advantage given that the vast majority of the positions in the hospital system were non-union. And as we know, this current Board has no tolerance for perceived advantages to non-union workers.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at