N.L.R.B. v. National Medical Hosp. of Compton

• Citation: 907 F.2d 905
• Decision Date: 29 August 1990
• Docket Number: No. 89-70054,89-70054
• Parties: 134 L.R.R.M. (BNA) 2787, 115 Lab.Cas. P 10,174 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL MEDICAL HOSPITAL OF COMPTON, dba Dominguez Valley Hospital, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 905

907 F.2d 905

134 L.R.R.M. (BNA) 2787, 115 Lab.Cas. P 10,174

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL MEDICAL HOSPITAL OF COMPTON, dba Dominguez Valley

Hospital, Respondent.

No. 89-70054.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 16, 1989.

Decided July 5, 1990.

As Amended on Denial of

Rehearing Aug. 29, 1990.

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 In this proceeding, the Board agreed with the administrative law judge ("ALJ") that the employer had prematurely withdrawn recognition of the union during the year in which it was required to bargain pursuant to the Board's original order in 1981 holding that the employer had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 labor practice charge alleged that the employer unlawfully withdrew recognition because the employer had relied upon an improperly circulated petition, the ALJ raised sua sponte the issue whether the withdrawal of recognition was also unlawfully premature. In his decision, the ALJ found that the initial period of certification began when the parties "actually beg[a]n to negotiate," on September 13, 1982.

The Board entertained the employer's subsequent motion to reopen the record and consider evidence of correspondence between the employer and the union with respect to the commencement of negotiations. However, the Board, upholding the decision of the administrative law judge, agreed that the date of the first formal bargaining session, and not any earlier date, commenced the certification year, and that the employer's refusal to bargain in June of 1983 violated the prior order requiring bargaining for a year.

There is no question that the Board's decision that bargaining "commenced" when the parties actually sat down to bargain represents a reasonable interpretation of the language of its own order. If our inquiry were focused upon the language of the order alone, the result would be clear. The employer's argument is, however, that the Board's holding nevertheless should be reversed because it is inconsistent with prior Board decisions, and that these decisions require that the certification year be measured from the date of this court's enforcement of the Board's original order or, at the very latest, when the employer offered to discuss when bargaining should begin.

The employer is correct that the Board is expected to follow prior decisions and may not significantly depart without explanation from its own established authority. See, Atchison, Topeka & Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 808-09, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973) (plurality opinion); Shaw's Supermarkets, Inc. v. N.L.R.B., 884 F.2d 34, 36-37 (1st Cir.1989). Deciding whether it has violated those principles therefore requires us to examine with some care both the authorities relied upon by the Board in reaching its decision and the authorities relied upon by the employer in asking us to reject the Board's position in this case.

Each side places principal reliance on a total of four N.L.R.B. decisions which involve the application of an underlying order containing language similar to that in this case. The standard language requires the employer to bargain with the union for one year, "beginning on the date when the employer commences good faith bargaining with the union." The Board correctly cites Groendyke, 205 N.L.R.B. at 244, and Alamo, 277 N.L.R.B. at 311, in support of its position. In Groendyke, the Board held "that the certification year commenced on November 30, 1971 because bargaining by the parties began on that date," 205 N.L.R.B. at 244. The Board thereby rejected March 13, 1970, the date that the order was issued requiring that the employer bargain.

In Alamo the Board found that August 22, 1980, the date that "the company and the Union held their first bargaining session," commenced the certification year, 277 N.L.R.B. at 311, and not the date the order requiring bargaining was enforced or August 6, 1980, the date when the company agreed to bargain. Id. at 310. These two decisions therefore clearly reckon the certification year period from the date that bargaining actually begins and not from the date the employer agrees to a union request to begin bargaining. This court has indicated agreement, because the purpose of the Board's orders is to compel negotiation, not merely agreements to meet. See N.L.R.B. v. Best Products Co., Inc., 765 F.2d 903, 914 (9th Cir.1985) ("The beginning of the irrebutable presumption of a union majority may properly run from the date of the Board's decision ... until one year after [the employer] complies with the Board bargaining order's command to negotiate in good faith"); see also N.L.R.B. v. Lee Office Equipment, 572 F.2d 704, 707 & n. 5 (9th Cir.1978); N.L.R.B. v. C & C Plywood Corp., 413 F.2d 112, 115 (9th Cir.1969).

The employer relies principally on two cases, Chicago Health & Tennis Clubs, Inc., 251 N.L.R.B. 140, and Colfor, Inc., 282 N.L.R.B. 1173. In these cases, however, the relief requested by the employers was denied.

In Chicago Health & Tennis Clubs, Inc., 251 N.L.R.B. 140, an order issued from the Board and was enforced by the Seventh Circuit on January 17, 1978. Id. at 140. On February 9, the employer made an oral offer to bargain with the union subject to its right to pursue remedies in the Supreme Court. On February 15, 1978, the employer sent to the union written terms of its offer. On February 17, the employer denied the union's request that it post a notice of a union meeting. No further communications were made between the parties until after the Supreme Court denied the writ of certiorari on June 19. Subsequently, the employer agreed to bargain and furnished requested information to the company. On October 9, 1978, the employer was requested to set a date for commencement of negotiations, the first of which occurred on November 2. The employer here relies heavily on a portion of the Board's decision:

The Regional Director recognized, and we agree, that the pivotal issue in this case is whether the employer made a proper offer to bargain on either February 9 or 15, so that the certification year started at one of those points. If that query is answered in the affirmative, the petition was...