907 F.2d 905 (9th Cir. 1990), 89-70054, N.L.R.B. v. National Medical Hosp. of Compton

Docket Nº:89-70054.
Citation:907 F.2d 905
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL MEDICAL HOSPITAL OF COMPTON, dba Dominguez Valley Hospital, Respondent.
Case Date:July 05, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 905

907 F.2d 905 (9th Cir. 1990)




Hospital, Respondent.

No. 89-70054.

United States Court of Appeals, Ninth Circuit

July 5, 1990

Argued and Submitted Nov. 16, 1989.

As Amended on Denial of

Rehearing Aug. 29, 1990.

Page 906

Frederick Havard, N.L.R.B., Washington, D.C., for petitioner.

J. Richard Thesing, Menlo Park, Cal., for respondent.

Petition to Review a Decision of the National Labor Relations Board.

Before SCHROEDER, NELSON and WIGGINS, Circuit Judges.

SCHROEDER, Circuit Judge:

In this unusually protracted labor relations controversy, the National Labor Relations Board seeks enforcement of a second order requiring the employer, National Medical Hospital of Compton, to bargain in good faith with Local 399 of the Service Employees International Union. In this proceeding, the Board agreed with the administrative law judge ("ALJ") that the employer had prematurely withdrawn recognition of the union during the year in

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which it was required to bargain pursuant to the Board's original order in 1981 holding that the employer had unlawfully refused to bargain. As a remedy for this second violation, the Board extended the certification year for six months.

The employer does not dispute the lawfulness of the Board's 1981 order that the employer had a duty to recognize and bargain with the union for a year. However, the employer here challenges the Board's measurement of that year, contending that the Board acted in contravention of its own precedent when it held that the year commenced when the parties sat down at the bargaining table, rather than at an earlier time. We have carefully reviewed the authorities cited by both parties in support of their positions, and conclude that the Board's decision was supported by prior rulings and in contravention of none. We enforce the Board's order.

It is well established labor law that once a labor union has been certified, it enjoys a non-rebuttable presumption of continued majority status for a reasonable time, usually one year. N.L.R.B. v. Best Products Co., Inc., 765 F.2d 903, 913 (9th Cir.1985). During the certification year, the employer has a duty to recognize and bargain with the union. N.L.R.B. v. Wilder Constr. Co., Inc., 804 F.2d 1122, 1124 (9th Cir.1986). Failure to bargain is considered an unfair labor practice. Mingtree Restaurant, Inc. v. N.L.R.B., 736 F.2d 1295, 1298 (9th Cir.1984).

In this case the Board certified Local 399 as the exclusive collective bargaining representative of the hospital's employees on August 27, 1980. The employer chose to test the certification by refusing to bargain with the union, thereby forcing an unfair labor practice proceeding. The Board concluded in 1981 that the union had been properly certified and that the employer's refusal to bargain violated sections 8(a)(1) and (5) of the National Labor Relations Act. National Medical Hosp., 257 N.L.R.B. 643 (1981), enforced without op., 685 F.2d 444 (9th Cir.1982).

The operative portion of the original order for purposes of this proceeding provided that the certification year would begin when the employer "commenced to bargain in good faith with the union ...". See National Medical, 257 N.L.R.B. at 643. The language is more or less standard, and similar language is found in other orders in Board decisions relied upon by both the employer and the Board. See, e.g., Colfor, Inc., 282 N.L.R.B. 1173, 1173 (1987); Alamo Cement Co., 277 N.L.R.B. 309, 310 (1985); Chicago Health and Tennis Clubs, 251 N.L.R.B. 140 (1980); Groendyke Transport, Inc., 205 N.L.R.B. 244 (1973).

Following this court's decision enforcing that order, the union and the employer exchanged correspondence in which the employer in June of 1982 indicated its willingness to discuss a time and date for bargaining. Actual bargaining did not begin, however, until September of 1982. In June of 1983, the employer declined to bargain any further with the union, claiming it no longer represented a majority of the employees. This refusal to recognize the union came less than a year after bargaining had begun, but more than a year after this court's decision enforcing the order to bargain and also more than a year after the employer indicated its willingness to discuss a time to begin bargaining.

While the union's original unfair...

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