Rubin ex rel. Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc.

• Decision Date: 21 January 2015
• Docket Number: Case No. CV 14–09534 MMM FFMx.
• Citation: 80 F.Supp.3d 1058
• Court: U.S. District Court — Central District of California
• Parties: Mori RUBIN, regional director of Region 31 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. VISTA DEL SOL HEALTH SERVICES, INC., d/b/a Vista Del Sol Healthcare, Respondent.

80 F.Supp.3d 1058

Mori RUBIN, regional director of Region 31 of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner

v.VISTA DEL SOL HEALTH SERVICES, INC., d/b/a Vista Del Sol Healthcare, Respondent.

Case No. CV 14–09534 MMM FFMx.

United States District Court, C.D. California.

Signed Jan. 21, 2015.

Brian Dean Gee, Joanna F. Silverman, Simone Pang Gancayco, National Labor Relations Board, Los Angeles, CA, for Petitioner.

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

ORDER GRANTING PETITIONER'S MOTION FOR PRELIMINARY INJUNCTION

MARGARET M. MORROW, District Judge.

On December 12, 2014, Mori Rubin, regional director of Region 31 of the National Labor Relations Board, acting for and on behalf of the National Labor Relations Board (the “Board”), filed a petition seeking a temporary injunction under Section 10(j) of the National Labor Relations Act (“NLRA”), as amended 29 U.S.C. § 160(j), against Vista Del Sol Health Services, Inc. (“Vista”).¹ The petition seeks injunctive relief based on Vista's purported violations of § 8(a)(1), (3), and (5) of the NLRA, which prohibit unfair labor practices.² Vista opposes the petition.³

I. FACTUAL BACKGROUND

A. Vista Del Sol Healthcare

Vista operates a nursing facility located in Los Angeles, California. The facility is divided into a skilled nursing division that goes by the Vista name, and an assisted living division known as Casa Del Mar.⁴ Vista employed approximately 62 employees in October 2013, including Rosa Valdivia, the facility's top management official; Jeri Warner, director of nursing; Ester Cuellar, assistant director of staff development; Vida Zelaya, director of staff development; and Arcadio De Borja and Ingrid Castillo.⁵ Valdivia, Warner, and Cuellar are high ranking supervisors with authority to terminate employees.⁶

B. The Beginning of Union Organizing

In early August 2013, the Service Employees International Union–Long Term Care Workers (“SEIU–ULTCW” or the “union”) began organizing employees at Vista.⁷ Several organizers made house visits and conducted meetings with the employees.⁸

Valdivia admitted that by August 8, 2013, she had “learned that there was some kind of union activity going on.”⁹

Marcos Salvador reports that, at approximately the same time, Id., “Valdivia called a meeting of employees. It took place in the hallway to the right of the nurse's station. There was Reyna Artola, Kiran [Singh], Remedios Lopez, Jeanette Aguillera, and myself. Ester [Cuellar] was there also. Valdivia did the speaking.... She said that we needed to be careful because there were some thieves visiting houses because they had stolen some documentation from her including all the employee information. She said that they would identify themselves as from the [u]nion. She said this was not true and they were actually thieves.... She said that we should not open our doors because they would look at everything we had so that they could steal it.”¹⁰ Rosa Lopez states that Valdivia called her cellular telephone sometime after the union visited her and told her that she “should not let them in because they might be thieves.”¹¹

On October 11, 2013, union representatives Jose Manzano and Edward Gutierrez held two meetings at a McDonalds. The first took place at approximately 1:00 pm. Two Vista employees were present: Silvia Figueroa and Lerma Davis; both signed union authorization forms.¹² A second meeting was held later in the day. Elisa Mayorga, Marcos Salvador, Rosa Lopez, Remedios Lopez, Reyna Artola, Ivania Ruedas, and Genaro Meza were present, and each signed a union authorization form.¹³ By October 14, 2013, Vista employees had obtained signatures from a majority of employees; at 3:30 or 4:00 pm that day, the union gave Valdivia a signed union petition.¹⁴ Figueroa, Salvador, Davis, Mayorga, Ruedas, Rosa Lopez, Remedios Lopez, Xenon Perez, Jeanette Aguillera, Aurora Maria Rodriguez, Reyna Artola, Maria Ramirez, Martha Aparicio, Rosalva Salazar were present, wearing purple Service Employees International Union scrubs.¹⁵ Salvador spearheaded presentation of the petition to Valdivia; speaking in Spanish, he allegedly demanded union recognition and requested that Valdivia sign the petition. Valdivia allegedly responded, also in Spanish, that she would not sign the petition and said she would contact her attorney.¹⁶

C. Vista's Response to its Employees' Attempt to Unionize

1. Policy Changes

On October 14, 2013, at approximately 3:00 pm, just prior to presentation of the union petition, Valdivia stopped Maria Ramirez and asked her about the union authorization cards that were being circulated and why she had signed the union “list.”¹⁷ After the petition was presented, Valdivia—who appeared “very upset and angry,” told all off-duty employees to leave the facility.¹⁸ Petitioner contends that this was a departure from ordinary practice, as “[t]here was no problem” with employees coming to the facility on days they were not working.¹⁹

Valdivia and Warner, the director of nursing, held meetings with several employees after the union petition was presented, and announced that the company would no longer tolerate employees arriving after the seven minute grace period at the start of their shift, and that employees who arrived late would be subject to discipline, including termination.²⁰ The meetings apparently took place during the week of October 14, 2013; the record does not reflect the precise date. On October 15, 2013, Valdivia met with housekeeping department employees. She informed them that Vista was going to enforce a more strict dress code policy, and would prohibit the wearing of any logos.²¹ Petitioner contends this effectively prevented employees from wearing union insignia.

2. Polling and Interrogation

Petitioner contends that from October 17 to 21, 2013, Valdivia polled and interrogated employees. Specifically, petitioner asserts that Valdivia gave employees a form to sign asking them to indicate whether they had voluntarily or involuntarily signed the union petition.²² On October 18, 2013, Valdivia purportedly asked Meza if he knew what he had signed, if he knew what he was doing, and what the union had promised him in return.²³ After he explained that employees wanted someone to represent them, Valdivia said that “the trust had ended” and that he had “betrayed her.”²⁴ On October 20, De Borja, a charge nurse, questioned Ramirez concerning her union involvement. When Ramirez declined to comment, De Borja ordered her to answer.²⁵ The next day, Valdivia asked Rosa Lopez if she had been forced to sign the union petition; she promised that Lopez would keep her job as long as she wanted it if she signed a document stating that she had been forced to sign the petition.²⁶

Petitioner alleges that on October 23, 2013, Cuellar impliedly threatened Meza by telling him that Valdivia was “well prepared” to respond to the union organizing and that the employees “should all be careful;” indeed, Cuellar purportedly went so far as to say that she “felt sorry for [the employees] because Valdivia was so well-prepared against [them].”²⁷

In an October 9, 2014 letter to the NLRB, Vista's lawyer stated that the entire facility might be forced to close if the employees were unwilling to accept the company's settlement offers.²⁸ Petitioner assert this is a threat that if Vista employees do not stop attempting to organize a union, the company will close the facility.

3. Discharge of Employees

i. Martha Aparicio and Delfina Sanchez

Petitioner contends that Martha Aparicio and Delfina Sanchez were discharged in order to discourage employees from engaging in union activities. On October 6, 2013, these certified nursing assistants (“CNAs”) were scheduled to work their usual 11:00 p.m. to 7:00 a.m. shift at Vista, together with charge nurse Jennifer Abaunza and CNA Maria Lopez. At approximately 3:50 a.m. on October 7, 2013,²⁹ Abaunza told Aparicio that she could take her break. Aparicio fell asleep in the nurse's station near Sanchez and Lopez.³⁰ Roughly an hour later, Abaunza said that Thomas Adelman, the son of a Vista patient, had just taken photographs of Aparicio, Sanchez, and Lopez sleeping, and told them all to wake up.³¹ Adelman, who was upset the nurses were sleeping, showed the photographs to Valdivia.

The next day, Warner called Ingrid Castillo, a charge nurse, into her office to discuss the incident because she believed that Castillo had been involved. After the meeting, Castillo told the CNAs that they needed to take turns taking naps in the future.³² The Vista employee handbook states that sleeping on the job is a violation that can lead to termination following the first offense. Vista contends it had never before had an issue with employees sleeping on the job.³³ Several CNAs assert, however, that CNAs and charge nurses regularly slept during the night shift, that charge nurses knew this, and that CNAs were not disciplined for doing so.³⁴ Indeed, Sanchez states that even after the October 7, 2013 incident, CNAs continued to sleep during the night shift.³⁵ After the incident and after Castillo's meeting with Warner, Sanchez and Aparicio worked their regularly scheduled shifts on October 7, 8, and 11–14, 2013 without issue.³⁶

Aparicio participated in the presentation of the union petition on August 14, 2013, which included both her and Sanchez's names, but not Maria Lopez's name.³⁷ On October 15, 2013, Sanchez met with Warner, who said she was obligated to terminate her because Sanchez had slept on the job.³⁸ Warner stated that four people had been sleeping and that all were being fired.³⁹ Aparicio met with Warner and Cuellar on October 18, 2013, and was told that she too was being terminated for sleeping. When she explained that Castillo had given her permission, as she had done for years, Warner said the orders came from Valdivia and that she had to terminate Aparicio.⁴⁰

Lopez was not terminated. Vista contends this...