Veritas Health Services, Inc., 31-CA-107321

• Court: National Labor Relations Board
• Writing for the Court: Mark Gaston Pearce, Chairman
• Citation: 363 NLRB No. 108
• Parties: Veritas Health Services, Inc., d/b/a Chino Valley Medical Center and United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO.
• Docket Number: 31-CA-107321
• Decision Date: 04 February 2016

363 NLRB No. 108

Veritas Health Services, Inc., d/b/a Chino Valley Medical Center and United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO.

No. 31-CA-107321

United States of America, National Labor Relations Board

February 4, 2016

Chairman Pearce and Members Hirozawa and McFerran

DECISION AND ORDER

Mark Gaston Pearce, Chairman

On March 3, 2015, Administrative Law Judge John J. McCarrick issued the attached decision. The Respondent, the General Counsel, the Charging Party, and employee Jose Lopez Jr., seeking to participate as an Intervenor, filed exceptions and supporting briefs. The Respondent, the General Counsel, the Charging Party, and Lopez filed answering briefs. The Respondent filed a reply brief to the General Counsel's and Charging Party's answering briefs.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,^[1] findings,^[2] and conclusions,^[3] to amend the remedy, and to adopt the recommended Order as modified and set forth in full below.^[4]

Amended Remedy Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order the Respondent to cease and desist from engaging in such conduct and, as explained in the remedy section of the judge's decision, to take certain affirmative action designed to effectuate the policies of the Act.^[5] However, we shall amend the remedy in three respects.

First, in light of the Respondent's demonstrated proclivity to violate the Act with respect to the unit employees in this case, we shall modify the judge's remedy by providing for a broad cease-and-desist order.^[6] See Hick-mott Foods, 242 NLRB 1357 (1979).

Second, for the reasons set forth in Caterair International, 322 NLRB 64 (1996), we find that a general affirmative bargaining order is warranted in this case as a remedy for the Respondent's unlawful withdrawal of recognition. We adhere to the view that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees.” Id. at 68. We shall therefore substitute this remedy for the limited one-issue bargaining remedy recommended by the judge.

In several cases, however, the U.S. Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the imposition of such an order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 738-739 (D.C. Cir. 2000); Lee Lumber & Building. Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent, supra at 738, the court summarized its requirement that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees' Section 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Although we respectfully disagree with the court's requirement for the reasons set forth in Caterair, supra, we have examined the particular facts of this case as the court requires and find that a balancing of the three factors warrants an affirmative bargaining order.

(1) An affirmative bargaining order in this case vindicates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the Respondent's unlawful withdrawal of recognition and resultant refusal to bargain with the Union. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union's continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation because the duration of the order is no longer than is reasonably necessary to remedy the ill effects of the violation. To the extent such opposition exists, moreover, we note that it may be at least in part the product of the Respondent's unfair labor practices.

(2) An affirmative bargaining order also serves the policies of the Act by fostering meaningful collective bargaining and industrial peace. That is, it removes the Respondent's incentive to delay bargaining in the hope of further discouraging support for the Union. It also ensures that the Union will not be pressured by the possibility of a decertification petition or by the Respondent's withdrawal of recognition to achieve immediate results at the bargaining table following the Board's resolution of its unfair labor practice charges and issuance of a cease-and-desist order.

(3) A cease-and-desist order alone would be inadequate to remedy the Respondent's violation because it would permit another challenge to the Union's majority status before the taint of the Respondent's unlawful withdrawal of recognition has dissipated and before the employees have had a reasonable time to regroup and bargain through their representative in an effort to reach a collective-bargaining agreement. Such a result would be particularly unjust in circumstances such as those here, where the Respondent has shown a proclivity to commit serious violations with respect to this particular unit, and the Respondent's withdrawal of recognition would likely have a continuing effect, thereby tainting any employee disaffection from the Union arising during that period or immediately thereafter. We find that these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose continued union representation. In order to provide employees with the opportunity to fairly assess for themselves the Union's effectiveness as a bargaining representative, the bargaining order requires the Respondent to bargain with the Union for a reasonable period of time.^[7]

For all the foregoing reasons, we find that an affirmative bargaining order with its temporary decertification bar is necessary to fully remedy the allegations in this case.

Finally, in addition to our usual notice posting remedy, we shall order the Respondent to mail copies of the notice to all per diem employees and former employees employed at any time since the alleged unfair labor practices. We find such a remedy necessary to effectuate the policies of the Act because former employees lack access to the Respondent's facility and will not see the posted notice, and per diem employees do not regularly report to that location. See Veritas Health Services, supra, 362 NLRB No. 32, affg. 359 NLRB No. 111, slip op. at 1-2 fn. 4.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Veritas Health Services, Inc., d/b/a Chino Valley Medical Center, Chino, California, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Withdrawing recognition from United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSME, AFL-CIO, and failing and refusing to bargain with the Union as the exclusive collective-bargaining representative of unit employees.

(b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with the Union as the exclusive collective-bargaining representative of employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:

All full-time, regular part-time and regular per diem nurses employed by the employer at its 5451 Walnut Avenue, Chino California facility in the following departments: emergency services, critical care services/intensive care unit surgery, post-anesthesia care unit, outpatient services gastrointestinal laboratory, cardiovascular catheterization laboratory, radiology, telemetry/direct observation unit and medical/surgical

(b) Within 14 days after service by the Region, post at its facilities in Chino, California, copies of the attached notice marked “Appendix.”^[8] Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In addition, within 14 days after service by the Region, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all per diem employees and former employees employed by the Respondent at any time since June 10, 2013. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 10, 2013.

(c)...