895 F.3d 69 (D.C. Cir. 2018), 16-1058, Veritas Health Services, Inc. v. National Labor Relations Board

Docket Nº:16-1058, 16-1076, 16-1110
Citation:895 F.3d 69
Opinion Judge:Pillard, Circuit Judge
Party Name:VERITAS HEALTH SERVICES, INC., d/b/a Chino Valley Medical Center, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO, Intervenor
Attorney:Jamie Konn, argued the cause for petitioner Veritas Health Services, Inc. With him on the briefs was Jonathan Batten, Washington, DC. Glenn M. Taubman argued the cause for petitioner Jose Lopez, Jr. With him on the briefs was Amanda K. Freeman, Springfield, VA. Barbara A. Sheehy, Attorney, Nation...
Judge Panel:Before: Griffith, Millett and Pillard, Circuit Judges. Millett, Circuit Judge, concurring:
Case Date:July 10, 2018
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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895 F.3d 69 (D.C. Cir. 2018)

VERITAS HEALTH SERVICES, INC., d/b/a Chino Valley Medical Center, Petitioner

v.

NATIONAL LABOR RELATIONS BOARD, Respondent

United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO, Intervenor

Nos. 16-1058, 16-1076, 16-1110

United States Court of Appeals, District of Columbia Circuit

July 10, 2018

Argued December 14, 2017

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On Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Jamie Konn, argued the cause for petitioner Veritas Health Services, Inc. With him on the briefs was Jonathan Batten, Washington, DC.

Glenn M. Taubman argued the cause for petitioner Jose Lopez, Jr. With him on the briefs was Amanda K. Freeman, Springfield, VA.

Barbara A. Sheehy, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were Richard F. Griffin, Jr., General Counsel at the time the brief was filed, John H. Ferguson, Associate General Counsel at the time the brief was filed, Linda Dreeben, Deputy Associate General Counsel, Julie Broido, Supervisory Attorney, and Gregoire Sauter, Attorney.

Pamela Devi Chandran argued the cause for intervenor. On the brief was Jay Smith, Los Angeles, CA.

Before: Griffith, Millett and Pillard, Circuit Judges.

Opinion

Pillard, Circuit Judge

In 2010, nurses at Chino Valley Medical Center exercised their right under federal labor law to elect a union to represent them. In the ensuing eight years, Chino

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has resisted the Union and the nurses who elected it— in the workplace, before the National Labor Relations Board, and in court. Instead of coming to any labor agreement, Chino repeatedly violated the nurses’ rights in its efforts to avoid dealing with their chosen representative: Chino threatened, coerced, and retaliated against the nurses— up to and including firing a nurse in retaliation for his visible support of the Union— and for several years Chino refused to commence bargaining with the Union, until we enforced the Board’s order requiring it do so.

The National Labor Relations Board (Board or NLRB) held, in three separate orders, that Chino’s management (incorporated under the name Veritas Health Services, Inc. but referred to in this opinion as Chino) violated the National Labor Relations Act (Act or NLRA), 29 U.S.C. § § 158(a)(1), (5), and we and the Ninth Circuit have already granted the Board’s prior petitions to enforce the first two orders. See

Veritas Health Servs., Inc. v. NLRB, 671 F.3d 1267 (D.C. Cir. 2012) (Veritas I ); United Nurses Ass’ns of Cal. v. NLRB, 871 F.3d 767 (9th Cir. 2017) (Veritas II ). Chino’s failed challenges to the Board’s orders have caused many years of delay and effectively stonewalled the nurses’ chosen representative, the United Nurses Association of California/Union of Healthcare Professionals (Union). As recently as 2017, Chino’s confirmed unfair labor practices had yet to be remedied. Now, eight years after the Union’s election, collective bargaining remains in limbo, with the nurses still awaiting their first labor contract.

We consider here whether, in the midst of Chino’s repeated challenges to the Board’s orders, and with the Union on the verge of securing its first contract, Chino could lawfully withdraw recognition from the Union— or whether, as the Board found, its refusal to bargain constituted yet another unfair labor practice. See Veritas Health Servs., Inc., 363 N.L.R.B. No. 108, 2016 WL 453588 (2016) (Board Order ), Joint App’x (J.A.) 1-13. We also consider whether to enforce the Board’s chosen remedies and whether an employee opposed to the Union had a right to intervene in the proceedings below. We conclude that federal law did not permit Chino to withdraw recognition from the Union when it did, that the Board’s remedies (except one) should be enforced, and that the would-be intervenor suffered neither prejudice nor a deprivation of his due process rights when the Board declined to expand this case to encompass his claim.

I. Background

This dispute reaches back to April 2010, when Chino’s nurses voted, 72 to 39, in favor of the Union as their collective bargaining representative. In the months leading up to the election, Chino committed multiple serious unfair labor practices, as found by the Board and sustained by the Ninth Circuit. Veritas II, 871 F.3d at 772; see also Veritas Health Servs., Inc., 359 N.L.R.B. No. 111, 2013 WL 1952152 (2013), re-adopted, 362 N.L.R.B. No. 32, 2015 WL 1278687 (2015). Those violations included threatening to cut back on nurses’ vacation benefits and flexible scheduling, and even to shut down the hospital and to fire employees, if the nurses voted to unionize. Veritas Health Servs., Inc., 359 N.L.R.B. No. 111, 2013 WL 1952152, at *9-11. A top executive also surveilled, interrogated, and threatened to discipline workers who openly supported the Union. Id. at *11-12.

After the representation election, Chino committed still more unfair labor practices— implementing, in effect, a "general crackdown." Id. at *26. Chino’s chief executive officer "announced the end of the

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family atmosphere at Chino," telling the nurses that "henceforth, because the employees voted for the Union," the hospital "would begin strictly enforcing its policies and procedures." Id. at *14. True to pre-election threats, management reduced the nurses’ vacation flexibility and curtailed benefits. Id. at *12, *34. Chino refused to provide the newly elected Union with basic information, such as employee names and contact information, that the Union needed to perform its duties. Id. at *36. And, within a few weeks of the election, Chino’s management fired a nurse who was a visible Union supporter on the pretext that he had violated a patient’s privacy. Id. at *16-29; see

Veritas II, 871 F.3d at 779 (finding "all the hallmarks of a pretextual firing" and "overwhelming evidence that [Chino] acted with a discriminatory motive in firing" the Union supporter).

The Union successfully challenged these unfair labor practices before the Board, and an N.L.R.B. Administrative Law Judge (ALJ) ordered Chino to restore its pre-unionization policies, to give the Union the withheld information, and to reinstate the nurse it had fired. Veritas Health Servs., Inc., 359 N.L.R.B. No. 111, 2013 WL 1952152, at *40-42. Chino appealed to the Board and then to the Ninth Circuit— leaving the company’s unfair labor practices unremedied until 2017, when that court denied its petition for review.

Meanwhile, Chino also refused to bargain with the newly elected Union. The Union, in response, sought Board enforcement of the representation election results and an order compelling Chino to come to the bargaining table. See Veritas Health Servs., Inc., 356 N.L.R.B. No. 137, 2011 WL 1396024 (2011). The Board held that Chino had unlawfully refused to recognize the Union; we enforced its order in March of 2012 and required Chino to bargain. See

Veritas I, 671 F.3d at 1271, 1274.

Within a week of our decision, on March 20, 2012, the Union contacted Chino, requesting the documents that Chino had refused to provide two years earlier. On March 22, Chino provided some, but not all, of the requested documents. The Union’s chief negotiator responded that the Union would "review[ ] the information," "proceed[ ] with preparations for bargaining," and "provide suggested bargaining dates" at some point "in the near future." J.A. 283. Chino’s point person for the negotiations responded: "That’s fine. Please let me know the available dates you have for negotiations so we can get started right away." Id.

The next correspondence in the record is an April 20 letter from the Union’s chief negotiator to Chino’s, proposing a dozen possible bargaining dates in June and July. The parties promptly agreed to bargain on several of those dates, including the earliest one proposed by the Union, June 13, 2012. As far as the record reveals, Chino never objected to the Union’s proposed timeline, raised any concerns about the pace of preparations, or asked for any earlier bargaining date. The Board later found that the three-month period between this court’s order and the start of bargaining was warranted by the Union’s need to "engage in extensive preparation work," including verification of current membership following "much turnover in the bargaining unit" since the election, and the complete lack of "information provided to the Union" during the two years Chino fought recognition. Board Order at 6 (J.A. 6).

Bargaining began as scheduled on June 13, 2012, after which the parties continued to meet and to bargain for nearly a year...

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