Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc., Case Nos. CV 14–03337 MMM FFMx

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtMARGARET M. MORROW, District Judge.
Citation40 F.Supp.3d 1238
PartiesNATIONAL LABOR RELATIONS BOARD, Applicant, v. VISTA DEL SOL HEALTH SERVICES, INC. d/b/a Vista Del Sol Healthcare, Respondent. Vista Del Sol Health Care Services, Inc. dba Vista Del Sol Healthcare, a California Corporation, Plaintiff, v. National Labor Relations Board, Region 31, 11500 W. Olympic Boulevard, Suite 600 Los Angeles, CA 90064; and Does 1 through 25, inclusive, Defendants.
Decision Date07 July 2014
Docket NumberCase Nos. CV 14–03337 MMM FFMx,CV 14–02193 MMM FFMx.

40 F.Supp.3d 1238

NATIONAL LABOR RELATIONS BOARD, Applicant
v.
VISTA DEL SOL HEALTH SERVICES, INC. d/b/a Vista Del Sol Healthcare, Respondent.


Vista Del Sol Health Care Services, Inc. dba Vista Del Sol Healthcare, a California Corporation, Plaintiff
v.
National Labor Relations Board, Region 31, 11500 W. Olympic Boulevard, Suite 600 Los Angeles, CA 90064; and Does 1 through 25, inclusive, Defendants.

Case Nos. CV 14–03337 MMM FFMx
CV 14–02193 MMM FFMx.

United States District Court, C.D. California.

Signed July 7, 2014.


40 F.Supp.3d 1242

Brian Dean Gee, Joanna F. Silverman, Juan Carlos Ochoa Diaz, Los Angeles, CA, Jessica Rutter, National Labor Relations Board, Washington, DC, for Applicant.

Yolanda Flores–Burt, Yolanda Flores–Burt Law Offices, Santa Ana, CA, for Respondent.

ORDER GRANTING IN PART AND DENYING IN PART THE NLRB'S APPLICATION FOR ORDER COMPELLING RESPONDENT'S COMPLIANCE WITH ADMINISTRATIVE SUBPOENAS DUCES TECUM

ORDER GRANTING THE NLRB'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

MARGARET M. MORROW, District Judge.

On March 21, 2014 Vista del Sol Health Care Services, Inc. (“Vista”) filed Case No. CV 14–02193 MMM (FFMx) (Vista ), against the National Labor Relations Board, Region 31 (“the NLRB” or “the Board”), seeking a declaration that two subpoenas duces tecum issued by the NLRB are invalid and an injunction against their enforcement.1 On May 7, 2014, the NLRB filed a motion to dismiss the case for lack of jurisdiction.2 Vista opposes the motion.3

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On April 30, 2014, the NLRB filed Case No. CV 14–03337 MMM (FFMx) (NLRB ), seeking an order requiring Vista to comply with the same two subpoenas.4 The case was originally assigned to Judge Stephen Wilson but was transferred to this court as a case related to Vista.5 Vista opposes the NLRB's application.6

I. FACTUAL BACKGROUND

A. Facts Adduced by the Parties with Respect to the Board's Application

Vista operates a skilled nursing facility. Between October 18 and December 9, 2013, the Service Employees International Union, United Long Term Care Workers (“SEIU”) filed fifteen charges with the Board alleging that Vista had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act (“the NLRA”), 29 U.S.C. § 158(a)(1) and (3).7 The SEIU asserted that Vista had discharged employees in retaliation for pro-union activities, laid off employees pursuant to an unlawful subcontract with a company called Pro–Clean because the employees supported the union, changed certain terms and conditions of employment to retaliate against employees for supporting the union, and restrained and/or coerced employees in the exercise of their right to unionize by, inter alia, interrogating employees, polling them, threatening them, prohibiting employees from wearing union colors and/or insignia, engaging in surveillance of employees' union activity, and creating the impression that employees' union activity was under surveillance.8

After receiving the charges, the NLRB began to investigate the union's claims; as part of this investigation, it requested that Vista complete a Questionnaire on Commerce Information so that the Board could determine whether it had jurisdiction over Vista.9 On October 23, 2013, Vista returned a copy of the questionnaire to the Board.10

On November 10 and December 20, 2013, the Board's attorney, John Rubin, sent letters to Vista's attorney, Yolanda Flores–Burt, requesting that Vista present evidence responding to the allegations set forth in the charge.11 On November

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27, 2013 and January 7, 2014, Vista submitted position statements and evidence to the Board.12 Specifically, it submitted its employee handbook; minutes of May 23, October 16, and October 18, 2013 staff meetings regarding Vista's attendance and tardiness policy; portions of employee reprimand and termination documents culled from employee files; an October 3, 2013 Service Agreement between Vista and Pro–Clean; copies of letters written by employees regarding pressure exerted on them by co-workers and the SEIU; selected employee time records for the period from June to October 2013; and a letter and photograph taken by the son of a recently deceased resident of Vista.13 The photograph depicts two individuals sleeping in chairs and covered in sweaters and blankets. These individuals were later terminated.

In its position statements, Vista stated that the individuals in the photographs had been terminated not for pro-union activity, but for sleeping on the job.14 It also stated that its subcontract with Pro–Clean was not unlawful because the negotiations that preceded entry into the subcontract had commenced as early as August 2013—before it claims it knew about the unionization efforts—and because Vista had entered into the contract for rational business reasons, not to stymy union activity and retaliate against pro-union employees.15 Vista also argued that it had not changed the terms and conditions of its employees' working conditions.16 It stated that its employee handbook had always provided that tardiness could result in disciplinary action, including termination,17 but that it had nonetheless adopted a practice of allowing nurses a “grace period” of seven minutes to clock in at the beginning of their shifts. The company asserted that it had learned that some nurses had been clocking out before their replacements clocked in, which left patients unattended and at risk.18 For that reason, it said, it had held staff meetings—which happened to coincide with the date on which the SEIU had filed a petition to unionize Vista's employees19 —during which it told its employees that because nurses were no longer waiting to clock out until their replacements had clocked in, it would begin to enforce the tardiness policy strictly and would no longer follow its practice of allowing a seven-minute grace period.20

On December 12, 2013, Rubin emailed Flores–Burt regarding deficiencies the Board had noted in the questionnaire submitted on October 23, 2013.21 Rubin advised Flores–Burt that the questionnaire she had submitted was illegible and incomplete.22 He asked that she complete a new

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questionnaire and gave her a link to the more updated version.23 Flores–Burt, however, failed to resubmit the questionnaire. On December 19, 2013, the Board issued and served the first of the subpoenas at issue, B–712357.24 The subpoena directed Vista's custodian of records to appear before the Board on December 26, 2013, and produce four categories of documents the Board believed relevant in determining whether it had jurisdiction over Vista:

1) Vista's articles and certificate of incorporation;

2) “The names, titles, and addresses of all persons serving on the board of directors and/or as officers of [Vista]”;
3) Vista's stock subscription books, stock transfer books, share registers, and other records reflecting the identity of Vista's shareholders and the amount of shares they own; and
4) “[F]inancial statements, balance sheets, profit and loss statements, auditor's reports, cash books, bank statements, tax records, deposit books, check stubs, vouchers, cancelled checks, bills, ledgers, and other books of account ... that show for the preceding 12 months or for the Employer's last fiscal year:
a. The value and nature of goods, materials and/or services purchased by the Employer directly from sources located outside of the State of California together with the names and addresses of all such sources and the dollar amounts purchased from each;
b. The value and nature of goods, materials and/or services purchased by the Employer from business enterprises located within the State of California together with the names and addresses of all such business enterprises and the dollar amounts purchased from each; and
c. The value and nature of goods, materials and/or services sold by the Employer directly to persons and to business enterprises located outside the State of California together with the names and addresses of all such persons and business.”25

Vista did not comply by the return date. Rather, on January 3, 2014, it filed a petition to revoke the subpoena.26 Simultaneously, it sent the Board a letter in which it reiterated its objections to the subpoena. Nonetheless, Vista produced its Statement of Information, filed with the California Secretary of State, which contains the name and address of Vista's sole officer and director, James Preimesberger.27 It also submitted a new questionnaire.28 Although the questionnaire was legible the Board asserts it was incomplete.29 On January 9, 2014, the Regional Director of Region 31 of the Board (“Regional Director”)

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issued an order referring Vista's petition to revoke the subpoena to the Board.30 The same day, Rubin filed opposition to the petition.31

On January 6, 2014, the Board...

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