Oregon labor lawyer and firm face more than $40,000 in penalties for misleading court in ‘bad faith’, judge says

A seasoned labor law partner and his firm, which represented Bend’s St. Charles Medical Center, face a penalty of more than $40,000 for filing a lawsuit and petition “in bad faith,” a federal judge has heard.

U.S. District Judge Michael J. McShane said the emergency motion filed on behalf of St. Charles Health System Inc., seeking a court order to restrain the workers’ union from striking, made no mention of the fact that long-standing case law only allows the National Labor Relations Board to issue an injunction to restrain an unfair labor practice.

McShane called it an “unusual if not egregious omission” by attorney Mark Hutcheson and his firm Davis Wright Tremaine and ordered them to pay $40,625.52 in costs to the union.

“The Court finds that Hutcheson knowingly failed to disclose a supervisory authority directly opposed to the defended position,” the judge wrote. “It is not credible to believe that this was simply an inadvertent omission.”

The judge ruled that the emergency motion on behalf of the hospital was not filed to “advance a valid legal argument,” but rather “to obtain valuable bargaining chip” to try to avoid a strike that was fast approaching.

The hospital’s motion for a federal temporary restraining order against the Oregon Federation of Nurses and Health Professionals was filed in U.S. District Court in Eugene in February and denied by McShane on March 2. . The union represents approximately 156 medical technicians and therapists at the hospital. They cited concerns over wages, cost-of-living adjustments and ‘disrespect issues’ and spent more than a week on the picket line before agreeing to end the strike on 12 March and resume contract negotiations.

Union attorney Catherine A. Highet argued that St. Charles attorneys intentionally misled the court as to its authority, noting that only the National Labor Relations Board could ask the courts to remedy the unfair labor practices.

“It is a cornerstone of modern American labor law that Congress intentionally withdrew the courts from labor disputes because Congress believed the courts had a habit of abusing injunctive power,” he said. -she writes.

The union attorney also pointed out that Hutcheson has been practicing for more than 50 years, has extensive experience in collective bargaining law, and has been named one of the “100 Most Powerful Employment Lawyers in the Nation.”

The judge, in his eight years on the federal bench, said he was unfamiliar with the National Labor Relations Act, and that’s because the law provides that only the National Labor Relations Board of Labor grants such relief.

“As the Court now understands, any attorney with labor dispute experience like the one at issue here would certainly understand that the law did not permit a district court to issue an injunction in these circumstances,” McShane wrote.

He cited the American Bar Association’s Model Rules of Professional Conduct, which prohibit an attorney from “knowingly omitting to disclose the supervisory authority directly opposed to the position being defended.” The rule is important to ensure judges don’t become victims of “lawyers hiding the legal bullet,” according to the bar association.

Hutcheson wrote to the court that he accepts full responsibility for failing to address “jurisdictional issues” that arise under national labor relations law.

“In the very limited time frame in which we had to gather our pleadings, we focused on perceived harm rather than jurisdictional issues,” he wrote.

He and his firm acknowledged that in hindsight they could have done more to alert the court to binding and contrary precedent, but argued that they should not face penalties because they were advocating for an “extension” of existing case law and found none. case which was quite similar to the facts in the case of the hospital.

“In this extreme and unique pandemic situation in a century, we believed that while a court may well refuse to grant the relief we seek on jurisdictional or other grounds, we were entitled to try to seek such repair on behalf of our client’s name,” Hutcheson wrote.

McShane called the argument “baseless”.

“That time was essential, however, which is why the plaintiff’s intentional omission of jurisdictional issues is so concerning,” the judge wrote. “If the defense hadn’t concocted a quick brief, the court was prepared to issue a totally illegal order based on the law as presented by the hospital; the law, the court later learned that it was a fiction.

Jodi Barschow, the union president, called the decision a victory for workers at St. Charles Hospital.

“This victory proves that our experiences with St. Charles management were legitimate and that bad behavior by employers will no longer be tolerated,” she said in a statement.

–Maxine Bernstein

Email [email protected]; 503-221-8212

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Denise W. Whigham