Virginia Mason Medical Center

VIRGINIA MASON MEDICAL CENTER 350 NLRB No. 73 923 Virginia Mason Medical Center and United Staff Nurses Union Local 141 a/w United Food & Commercial Workers International Union, CLC.1 Case 19–CA–29046 August 21, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND KIRSANOW On June 14, 2004, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respon- dent and the General Counsel each filed exceptions, a supporting brief, an answering brief, and a reply brief. 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, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3 In adopting the judge’s conclusion that the Respondent unlawfully withdrew recognition from the Union during the certification year, we agree with the judge’s finding that the Respondent failed to show that the Union en- gaged in inexcusable procrastination or otherwise mani- fested bad faith in delaying bargaining. The Union was certified as the exclusive bargaining representative of the unit employees on December 6, 2000. The Respondent tested the certification, which the District of Columbia Circuit ultimately upheld on May 28, 2002,4 enforcing the Board’s bargaining order. To prepare for bargaining, the Union requested information on June 25; the Respondent supplied the information on June 27. On August 28, the Union requested that the Respondent meet to negotiate on October 1, 2, or 3. The Respondent accepted the first of these dates, and the par- ties began negotiations on October 1. Less than a year later, on September 24, 2003, the Re- spondent received a document titled “Petition to Decer- tify the Union” dated September 23, 2003, containing the 1 We have amended the caption to reflect the disaffiliation of the United Food and Commercial Workers International Union from the AFL–CIO effective July 29, 2005. 2 No exceptions were filed to the judge’s findings that the Respon- dent violated Sec. 8(a)(1) by counseling and issuing a written warning to employee Jeanette Rerecich because of her protected concerted ac- tivity, or to the judge’s dismissal of the allegation that the Respondent changed Rerecich’s work schedule unilaterally in violation of Sec. 8(a)(5). 3 We shall modify the judge’s recommended Order to eliminate re- dundancy, to conform to the Board’s standard remedial language, and in accordance with Excel Container, Inc., 325 NLRB 17 (1997). We shall also substitute a new notice to conform to the Order as modified. 4 All dates are 2002, unless otherwise indicated. signatures of 9 of the 18 unit employees. Based on this petition, the Respondent withdrew recognition from the Union on September 26, 2003. The judge found that the withdrawal of recognition violated Section 8(a)(5) on two separate grounds. First, rejecting the Respondent’s contention that the Union engaged in inexcusable procrastination or otherwise manifested bad faith in delaying bargaining, the judge found that the certification year began to run on October 1, 2002, and therefore that the Respondent unlawfully withdrew recognition during the certification year. Sec- ond, citing Chelsea Industries, 331 NLRB 1648 (2000), enfd. 285 F.3d 1073 (D.C. Cir. 2002), the judge found that the Respondent was precluded from relying on the September 23 petition as a basis for withdrawing recog- nition because the petition predated the expiration of the certification year. We affirm the judge’s 8(a)(5) finding based on the first of these grounds.5 Where an employer has refused to bargain with a certi- fied union while pursuing its right to judicial review, the certification year begins on the date of the parties’ first bargaining session following final affirmance of the Board’s Order, Van Dorn Plastic Machinery Co., 300 NLRB 278 (1990), enfd. 939 F.2d 402 (6th Cir. 1991), unless “there is a significant delay in the start of bargain- ing attributable to inexcusable procrastination or other manifestation of bad faith on the part of the union,” id. at 278 fn. 4. When the start of the certification year has been delayed because of litigation, “‘some time can rea- sonably be allowed before the certification year begins for the union to reestablish contacts with unit employees to facilitate bargaining on their behalf.’” Id. at 278–279 (quoting Dominguez Valley Hospital, 287 NLRB 149, 150 (1987), enfd. 907 F.2d 905 (9th Cir. 1990)). Here, there was nearly a year-and-a-half delay from certification until the court of appeals enforced the Board’s bargaining order. Less than a month later, the Union requested information it needed for bargaining; and it sought bargaining within 2 months of receiving the requested information. The Respondent accepted the first bargaining date that the Union suggested. There is no evidence of bad faith on the Union’s part. Nor is there evidence that the Respondent complained about delay or requested an earlier bargaining date. Four months passed from the court’s enforcement of the bar- gaining order to the start of bargaining; but that delay does not strike us as inexcusably long to formulate in- formation requests, to assimilate the information re- 5 Accordingly, we find it unnecessary to pass on the Respondent’s exception to the judge’s finding that the Respondent was precluded from relying on the September 23 petition under Chelsea Industries, supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 924 ceived, to reestablish contacts with unit employees, and to otherwise prepare for bargaining an initial contract. On this record, the Respondent has not shown that the delay was attributable to inexcusable procrastination or bad faith.6 Accordingly, we agree with the judge that the certification year began on October 1, 2002.7 Remedially, the judge recommended that the Respon- dent be required to recognize and bargain in good faith with the Union for 6 months following resumption of face-to-face bargaining as if the initial year of certifica- tion had been extended for that period. The judge did not, however, justify the imposition of such an order as required by the District of Columbia Circuit. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB, 117 F.3d 1454, 1461–1462 (D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). Nevertheless, for the reasons set forth below, we agree with the judge that such an affirmative bargaining order is warranted on the facts of this case.8 The Board has previously held that an affirmative bar- gaining 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 em- ployees.” Caterair International, 322 NLRB 64, 68 (1996). In several cases, however, the District of Co- 6 Our dissenting colleague notes that the delay in bargaining was not attributable to the Respondent. However, the issue is whether it has been shown that the delay was due to inexcusable procrastination or other manifestation of bad faith on the part of the union. That showing has not been made. 7 Member Schaumber would reverse the judge and find that the Re- spondent did not violate Sec. 8(a)(5) by withdrawing recognition from the Union on September 26, 2003, because the Union unduly delayed face-to-face bargaining. See Van Dorn Plastic Machinery Co., 300 NLRB 278 fn. 4 (“Of course, if there is a significant delay in the start of bargaining attributable to inexcusable procrastination or other mani- festation of bad faith on the part of the union, then equating the start of the certification year with the first bargaining session would not be warranted.”). Over 4 months elapsed between the court’s order on May 28, 2002, and the parties’ first bargaining session, and none of that delay is attributable to the Respondent. The evidence shows that the Respondent complied with the Union’s June 25, 2002 information request within 2 days, and it agreed to the Union’s first proposed bar- gaining date, October 1, 2002. In the absence of any explanation from the Union as to why it took 4 months to commence bargaining, Mem- ber Schaumber would find that the undue delay in face-to-face bargain- ing was attributable to the Union, and thus that the Respondent met its duty to bargain in good faith for the full certification year. In addition, Member Schaumber would find that the certification year ended before September 23, 2003, the date of the unit employees’ disaffection peti- tion. Accordingly, Chelsea Industries, 331 NLRB 1648 is inapposite. 8 We emphasize that the Respondent’s duty to bargain will not auto- matically end after the 6-month extension of the certification year ex- pires. Rather, at that point, the Union will enjoy a rebuttable presump- tion that its majority status continues. See, e.g., JASCO Industries, 328 NLRB 201, 201–202 (1999). lumbia Circuit has required the Board to justify, on the facts of each case, the imposition of an affirmative bar- gaining order. In Vincent Industrial Plastics, supra, the court stated 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 bargain- ing representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Supra at 738. Consistent with the court’s requirement, we have examined the particular facts of this case and we find that a balancing of the three factors warrants an affirmative bargaining order.9 (1) An affirmative bargaining order vindicates the em- ployees’ Section 7 rights by providing the employees, who were denied the benefits of collective bargaining by the Respondent’s unlawful withdrawal of recognition, with the opportunity to negotiate and execute an initial collective-bargaining agreement. This is particularly important given that here, the Respondent’s withdrawal of recognition found to have violated Section 8(a)(5) also contravened the Board’s earlier decision and order, en- forced by the D.C. Circuit, requiring that the Respondent recognize and bargain with the Union. Virginia Mason Medical Center, 333 NLRB No. 125 (2001) (not reported in Board volumes), enfd. 35 Fed. Appx. 4 (D.C. Cir. 2002). At the same time, an affirmative bargaining order does not unduly burden the Section 7 rights of employees who might oppose continued union representation be- cause the duration of the order is no longer than is rea- sonably necessary to remedy the ill effects of the Re- spondent’s unlawful withdrawal of recognition. 9 Chairman Battista does not agree with the view expressed in Caterair International, supra, that an affirmative bargaining order is “the traditional, appropriate remedy” for an 8(a)(5) violation. He agrees with the District of Columbia Circuit that a case-by-case analy- sis is required to determine whether the remedy is appropriate. Saginaw Control & Engineering, Inc., 339 NLRB 541, 546 fn. 8 (2003). He recognizes, however, that the view expressed in Caterair International represents extant Board law. See Flying Foods, 345 NLRB 101, 110 fn. 23 (2005), enfd. sub nom. Flying Food Group, Inc. v. NLRB, 471 F.3d 178 (D.C. Cir. 2006). Member Kirsanow observes that the Board’s practice of routinely ordering bargaining to remedy an unlawful refusal to bargain is of exceptionally long duration and was unanimously reaffirmed in Caterair International after full briefing and oral argument, and no party challenges that settled practice here. On this basis, Member Kir- sanow adheres to the Caterair doctrine. As to the merits of that doc- trine, Member Kirsanow will reserve judgment until the issue is pre- sented in a case in which it is fully briefed by the parties, and prefera- bly also by amici. See Parkwood Developmental Center, 347 NLRB 974, 976 at fn. 11 (2006). In light of Member Schaumber’s finding that the Respondent did not unlawfully withdraw recognition, he finds it unnecessary to pass on the legitimacy of the proposed bargaining order. VIRGINIA MASON MEDICAL CENTER 925 (2) An affirmative bargaining order also serves the policies of the Act by fostering meaningful collective bargaining and industrial peace. It gives the parties time to resume negotiations and to execute a collective- bargaining agreement if those negotiations are success- ful. It also ensures that the Union will not be pressured, by the possibility of another challenge to its majority status, to achieve immediate results at the bargaining table—results that might not serve the best interests of the bargaining unit employees. (3) A cease-and-desist order without the temporary bar on challenges to the Union’s majority status attendant on an affirmative bargaining order would be inadequate to remedy the Respondent’s unlawful withdrawal of recog- nition and refusal to bargain because it would allow an- other such challenge to the Union’s majority status be- fore the taint of the Respondent’s previous unlawful withdrawal of recognition has dissipated. Allowing an- other challenge to the Union’s majority status without such a period for bargaining would be particularly unfair in light of the fact that the litigation of the Union’s charges in this case has taken several years and, as a re- sult, the Union once again finds itself needing to reestab- lish its representative status with unit employees. In- deed, permitting a decertification petition to be filed im- mediately might very well allow the Respondent to profit from its own unlawful conduct. We find that these cir- cumstances outweigh the temporary impact the affirma- tive bargaining order will have on the rights of employ- ees who oppose continued union representation. ORDER The National Labor Relations Board orders that the Respondent, Virginia Mason Medical Center, Bainbridge Island, Washington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Counseling and issuing warnings to its employees for engaging in protected concerted activity. (b) Withdrawing recognition from the Union as the collective-bargaining representative of its employees in the unit set forth below, and refusing to meet and bargain in good faith with the Union. (c) In any like or related manner interfering with, re- straining, 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) Rescind the September 2, 2003 counseling and the September 8, 2003 written warning of employee Jeanette Rerecich. (b) Within 14 days from the date of this Order, remove from its files any reference to the unlawful counseling and written warning of Jeanette Rerecich, and within 3 days thereafter notify her in writing that this has been done and that the counseling and written warning will not be used against her in any way. (c) Recognize and, on request, bargain with the Union as the exclusive representative of the employees in the following appropriate unit concerning terms and condi- tions of employment as if the initial year of cerftification has been extended for an additional 6 months from the commencement of bargaining and, if an understanding is reached, embody the understanding in a signed agree- ment. All registered nurses and all other professional employ- ees employed by the Respondent at its Winslow (Bain- bridge Island) facility, but excluding all physicians, all nonprofessional employees, and guards and supervisors as defined by the Act. (d) Within 14 days after service by the Region, post at its Bainbridge Island, Washington facility copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respon- dent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. 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 Re- spondent 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 September 2, 2003. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 926 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT counsel our employees or issue warnings to them because they engage in protected concerted ac- tivities. WE WILL NOT withdraw recognition from the Union and refuse to meet and bargain in good faith with the Union as the collective-bargaining representative of our employees in the unit set forth below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act, which are listed above. WE WILL rescind the September 2, 2003 counseling and the September 8, 2003 written warning of employee Jeanette Rerecich. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful counseling and written warning of employee Jeanette Rerecich, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the coun- seling and written warning will not be used against her in any way. WE WILL recognize and, on request, bargain with the Union as the exclusive representative of our employees in the following appropriate collective-bargaining unit concerning terms and conditions of employment as if the initial year of certification has been extended for an addi- tional 6 months from the commencement of bargaining and, if an understanding is reached, embody the under- standing in a signed agreement. All registered nurses and all other professional employ- ees employed by us at our Winslow (Bainbridge Island) facility, but excluding all physicians, all nonprofes- sional employees, and guards and supervisors as de- fined by the Act. VIRGINIA MASON MEDICAL CENTER Richard Fiol, Esq. and Martin Eskenazi, Esq., for the General Counsel. Mark A. Hutcheson Esq., Robert F. Porcarelli, Esq., and Sara S. Bowen, Esq. (Davis Wright Tremaine LLP), with them on brief, of Seattle and Bellevue, Washington, for the Respon- dent. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard the above-captioned case in trial in Seattle, Washington, on March 23 and 25, 2004, pursuant to a complaint and notice of hearing issued by the Regional Director for Region 19 of the National Labor Relations Board (the Board) on February 27, 2004. The complaint is based on a charge filed by the United Staff Nurses Union Local 141 affiliated with United Food & Commercial Workers International Union, AFL–CIO (the Charging Party or the Union) against Virginia Mason Medical Center (the Respondent) on December 11, 2003, docketed as Case 19–CA–29046, and amended on December 25, 2003. The Respondent filed a timely answer and amended answer to the complaint. The complaint, as amended at the hearing, alleges, and the answer denies, inter alia, that the Respondent on or about Sep- tember 2, 2003, wrongfully orally disciplined employee Jeanette Rerecich and on September 8, 2003, issued her a writ- ten warning in violation of Section 8(a)(1) of the National La- bor Relations Act (the Act). The complaint further alleges, and the answer denies, that the Respondent in June 2003 restruc- tured its Winslow facility operations resulting in the June 16, 2003 layoff of employee Denise Janetos and the September 24, 2003 layoff of employee Maree Zawoysky without notice to the Union or affording it an opportunity to bargain with respect to this conduct in violation of Section 8(a)(5) and (1) of the Act. The complaint further alleges that Respondent changed the work schedule of employee Jeannette Rerecich without notice to the Union or affording it an opportunity to bargain with re- spect to this conduct in violation of Section 8(a)(5) and (1) of the Act. Finally the complaint alleges and the answer denies that the Respondent on or about September 26, 2003, withdrew its recognition of the Union as the exclusive representative of a unit of the Respondent’s Winslow employees in violation of Section 8(a)(5) and (1) of the Act. FINDINGS OF FACT Upon the entire record herein, including helpful briefs from the Respondent and the General Counsel, I make the following findings of fact.1 1 As a result of the pleadings and the stipulations of counsel at the trial, there were few disputes of fact regarding collateral matters. VIRGINIA MASON MEDICAL CENTER 927 I. JURISDICTION The Respondent is a nonprofit corporation providing inte- grated health care in the Washington State, Puget Sound area. It operates an acute-care hospital in Seattle, Washington, and 19 nonacute care outpatient facilities, one of which is located in Winslow, Washington, on Bainbridge Island. At all times ma- terial, the Respondent has annually enjoyed gross sales of goods and services in excess of $250,000 and has purchased and caused to be transferred and delivered to its Washington State facilities goods and materials of a value in excess of $5000, which originated outside the State. Based on the above, there is no dispute and I find the Re- spondent is and has been at all times material an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) and a health care institution within the meaning of Sec- tion 2(14) of the Act. II. LABOR ORGANIZATION The record establishes, there is no dispute, and I find the Un- ion is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Evidence 1. Background At all relevant times the Respondent has maintained a non- acute care outpatient clinic in Winslow, Washington (the Clinic). The Clinic is managed onsite by Clinic Manager Terri Hazelton, Clinic Supervisor Carla Mather, and Clinic Section Head Dr. Kim Leatham. The facility is part of a system of clinics throughout the Puget Sound. The Clinic employs ap- proximately 80 employees, including doctors, registered nurses, a pharmacist, and medical assistants. 2. Events relevant to the discipline of Jeanette Rerecich Rerecich is a longtime registered nurse and Clinic employee who had been working as part of the Clinic’s internal medicine team. Rerecich testified that in the spring of 2003, a morale committee made up of various nonmanagement Clinic employ- ees was formed to “attempt to identify clinic problems and come up with solutions in order to improve morale.” Rerecich testified she was a supporter of the idea but was not a member. She did receive e-mails from the committee however including one dated June 30, 2003, addressed to “the team” from the committee leader containing a summary of employee responses to the committee dealing with problems and suggestions for improvement. She testified that she: Believed that this was—the team had said that they would keep the staff updated regarding their progress and, when I re- ceived this e-mail, that’s how I perceived it, that it was an up- date from the team for the staff. Sometime in the first week of July, Rerecich had a discus- sion with a fellow employee, Janice O’Conner, regarding cer- Where not otherwise noted, the findings herein are based on the plead- ings, the stipulations of counsel, or unchallenged credible evidence. tain problems at the Clinic during which the content of the e– mail was mentioned by Rerecich. She testified: I asked [O’Conner] if she had a chance to look at the results of the findings of the committee and she informed me that she did not get the e-mail and asked if she could have a copy and so I printed it off and gave it to her. Members of the committee came to learn that Rerecich had given a copy of the e-mail communication to O’Conner and were evidently displeased. They sent an e-mail to Rerecich titled “Recent Episode of ‘inappropriate behavior,’” which stated: Some of the issues that we’re clearing identified re- cently through our team’s efforts were lack of trust, com- munication, confidentiality and honesty among manage- ment members. As a “team” we have tried to enforce these values among ourselves often times confronting each other in order to maintain a good open relationship. We, as a group, would like to convey to you our disap- pointment in your inappropriate decision to share informa- tion that was confidential. It indicates to us that manage- ment is not only a fault for lacking these virtues [sic]. The issues raised should be directed toward the entire staff. This type of behavior cannot be tolerated as it perpetu- ates the underlying problem we have here in the clinic. That being poor morale due to lack of trust. We will work through this. Hopefully as a group of individuals working closely together on a daily basis we will begin to recog- nize the importance of interacting with each other honesty, [sic] openly and respectfully. Those involved spoke of the matter to Clinic Section Head Dr. Leatham over the following days and management was made aware of employee unhappiness over the memo being provided to another employee. Rerecich testified that on September 2, 2003, in Clinic Man- ager Hazelton’s office, the matter of the e-mail and her provi- sion of the memo to another employee came up. Rerecich re- called: [Hazelton] said that—that she knew that I had shared a confi- dential e-mail and informed me that this was not an okay thing to do and that I was the nurse on the team and that I should be careful of doing this, and my response to her was I did not know this was a confidential e-mail, it was not labeled confidential, that my impression when I did share it with Janice [O’Conner] was that this was an update from the team to the clinic staff. On September 8, 2003, Rerecich received a written warning on Respondent’s preprinted form entitled: “Documentation of Written Warning for Inappropriate Behavior.” The document was triggered by an event involving patient information confi- dentiality occurring on September 2, 2003, but the warning also referred to the “team” memorandum issue. The warning, the omitted portion of which addresses the September 2, 2003 pa- tient confidentially matter not under challenge herein, states in part: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 928 This warning is being given for your continued dem- onstration of a pattern of unprofessional behavior, of exer- cising poor judgment as a health care provider & in dem- onstrating disruptive behavior. You have been counseled on these issues previously, specifically on February 1, 2003, July 9, 2003 & most recently on September 2, 2003. . . . . Past dates and subject of discussions we have had with you are: . . . . 9/2/03 Sharing of a confidential e-mail with a co- workers [sic] demonstrated a lack of good judgment & re- sulted in disrupting the morale of your coworkers & made them very angry. Please be advised that if corrective action is not under- taken immediately or if there are further demonstrations of such unacceptable behaviors, it may lead to further disci- plinary action up to and including termination of employ- ment. 3. Bargaining history On September 8, 2000,2 the Union filed a representation peti- tion in Case 19–RC–14016 seeking to represent certain em- ployees at the Clinic. On October 19, 2000, the Regional Di- rector directed an election in Case 19–RC–14016 in the follow- ing unit (the unit) of employees: All registered nurses and all other professional employees employed by the Respondent at its Winslow (Bainbridge Is- land) facility, but excluding all physicians, all nonprofessional employees, and guards and supervisors as defined by the Act. The Respondent sought Board review of the direction of election, but on November 14, 2000, the Board denied the Re- spondent’s request for review. An election was held on No- vember 17, 2000, and on December 6, 2000, the Regional Di- rector issued a Certification of Representative certifying the Union as the exclusive representative of unit employees for purposes of collective bargaining. The Respondent sought Board review of this certification, but the Board denied the request for review on January 3, 2001. The Union, by letter of December 26, 2000, requested the Respondent recognize and bargain with it respecting the unit. On January 24, 2001, the Respondent refused to recognize or bargain with the Union. An unfair labor practice charge was filed by the Union on February 12, 2001, in Case 19–CA– 27401, respecting the refusal. Complaint issued on February 23, 2001, and the Board on April 18, 2001, in a decision re- ported at 333 NLRB No. 125 (2001) (not reported in Board volumes), granted summary judgment in favor of the General Counsel. The Board’s Order required the Respondent to post remedial notices for 60 days, to bargain on request with the Union and held, at page 2 of slip op.: To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as be- ginning the date the Respondent begins to bargain in good 2 I take administrative notice of the date of filing of the petition. faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. F.2d 57 (10th Cir. 1965). The Respondent refused to comply with the Board’s Order and the matter was taken to the United States Court of Appeals for the District of Columbia on the Respondent’s petition for review. On May 28, 2002, in an unreported decision, the Court of Appeals for the District of Columbia issued its order denying the Respondent’s petition and granting the Board’s cross- application for enforcement, 35 Fed. Appx. 4 (2002), WL 1052019 (D.C. Cir.). In response to the Court of Appeals’ order, the Respondent posted the required Board notices starting on June 20, 2002, and, presumably, ending on or about August 20, 2002.3 On June 25, 2002, the Union requested a substantial amount of information from the Respondent respecting the unit employees for the year preceding the request. The Respondent timely supplied the requested information. On August 28, 2002, the Union requested the Respondent meet to negotiate on October 1, 2, or 3, 2002. On August 30, 2002, the Respondent accepted the October 1, 2002 date for the first bargaining session. The parties met on October 1, 2002, in face-to-face bargaining and thereafter on multiple occasions over the following months with the final meeting held on September 26, 2003, which was the 22d bargaining session. During the course of bargaining, the parties negotiated and reached tentative agreement on various matters conditioned on complete agreement on a new contract. Thus on June 20, 2003, the parties reached a tentative agreement on contract language covering per diem employees including the following: Per diem employees shall make a good faith effort to work at least one (1) eight hour shift every two pay periods, unless other specific arrangements are made with the Clinic in ad- vance. Any per diem employee not meeting this commitment may be terminated due to lack of availability. In addition, a per diem employee may be terminated if the per diem em- ployee has not worked at the Clinic for a period of no less than one year because of lack of available work at the Clinic. On Wednesday, September 24, 2003, Clinic Manager Terri Hazelton received a document entitled: “Petition to Decertify the Union” dated September 23, 2003, which contained the text: “We the below would like to decertify the union,” and bore the signatures of nine unit members. The Respondent’s agents at the September 26, 2003 bargaining session provided a copy of the letter to the Union’s bargaining agents. At the same time, the Respondent’s counsel told the union bargainers that based on the document, the Respondent believed the Union did not have the support of a majority of unit employees and that it would be unethical to continue bargaining in such circum- stances. In light of this, the Respondent’s counsel asserted, the Respondent was withdrawing recognition. The Respondent 3 The Board’s Order required notices be posted for 60 days and there is no dispute the Respondent complied with the Order following court enforcement. VIRGINIA MASON MEDICAL CENTER 929 confirmed this position by letter the same day and has at all times thereafter refused to recognize or bargain with the Union as the representative of unit employees. 4. Events relevant to the prewithdrawal of recognition bargaining allegations a. Employee Janetos Janetos is a nurse practitioner. She began her employment with the Respondent in May 1998 at another of the Respon- dent’s clinics and transferred to the Clinic in the fall of 2001 working in the Clinic’s urgent care department on a half-time basis.4 In early 2003, Janetos took employment elsewhere, quit her regular Clinic employment, and on February 2, 2003, was converted to a per diem employee.5 From that time forward to mid-June 2003, Janetos worked some days and was unavailable for others days when called. On June 13, 2003, following a telephonic message left by Clinic Manager Hazelton and a vacation delay, Hazelton and Janetos met at the Clinic alone in Hazelton’s office. Janetos testified that Hazelton told her they would not be needing her any longer and that “they needed to clean up the roster of per diems and that they had hired someone to work in urgent care.” Janetos recalled that although Hazelton repeated the assertion that her release was necessary to clean up the roster, no other reason for her termination was provided. On or about June 18, 2003, Janetos received a letter dated June 16, 2003, from the Respondent’s human resources de- partment, which stated in part: Due to the evolving needs of the medical center and our cur- rent staffing needs, we have decided that we can no longer maintain your status as an on-call employee. Therefore this letter is to inform you that your position as a per diem em- ployee at VMMC has been terminated effective 6/8/03. The letter gave no other reason for the termination. Hazelton testified that Janetos was not terminated because the roster needed to be “cleaned out” because she had not worked recently, but rather testified that Janetos was discharged because as a per diem employee she had been unavailable for work several times when called. Janetos sent an e-mail to Dr. Leatham dated June 20, 2003, seeking reconsideration of her termination. Her note states in part: Terri [Hazelton] also confirmed to me that as a per diem resource I am not costing the clinic anything and the only reason VM is doing this is to “clear up the roster.” I have a difficult time understanding this decision especially in light of the fact that there is a tentative union contract in place that VM has agreed to with language stating that per diem workers can be terminated if they have not worked in a year. This is not the case with me. I realize that there have been times when I was unable to fill in recently. . . . 4 The Respondent describes the extent of employee employment in fractions of full-time employment or FTE. Thus, Janetos at this time was a “.5 FTE.” 5 The Respondent’s term “per diem” or per day employee is given to employees working on an as needed or on-call basis. Dr. Leatham responded on July 11, 2003, by e-mail. Her note begins: I have taken a long time to respond to this because you are represented by the union and this is somewhat of a negotiation that must go through them. I have always been very open and willing to work directly with any one at the clinic. Terri, Gary and Karla and I work together to make many decisions about our employee roster. We all agreed to “clean up” the roster of per diems. There is a cost associated with keeping per diems on the roster as the organization’s insurance and malpractice costs are based on the total number of professionals on our current roster. That is one of the driving reasons to keep it lean. b. Employee Zawoysky Zawoysky is a registered nurse who began working on the Clinic’s family practice team in May 2001 as a per diem em- ployee. At the end of 2002, Zawoysky became eligible for social security benefits which made it desirable to limit her hours at the Clinic to 3 days a month, a reduction from her previous availability. Zawoysky worked until September 24, 2003, when she re- ceived a telephone call from Hazelton who told her: “because of restructuring and rescheduling, we will no longer need your services.” Zawoysky went to the Clinic the following day and met with Mather and Hazelton. She testified that she expressed displeasure at the manner of her release and the three discussed the situation. Zawoysky recalled: [Hazelton] talked about the restructuring of the clinic in terms of, instead of having family practice and internal medicine, they were combining those and calling it adult medicine. That was going to impact staffing and that was one reason that they would not need me, because they were putting Jeannette Rerecich on five 8-hour days in- stead of four 10-hour days. . . . . She worked in internal medicine and that would mean that they were needing to give some of their regular part- time employees—you know, they were needing to find more hours for their other employees, regular part-time employees. So that was one reason. The other was that they had visited other clinics and were being encouraged to decrease the clinic roster. And then one of the final points that was made was my availability. Because I was not as available, because my availability had decreased to approximately three—three days a month, they just felt that—she just felt that I wasn’t flexible enough as they needed me to be. Hazelton sent Zawoysky a letter dated September 29, 2004, reiterating in writing the reasons for ending Zawoysky’s posi- tion as a per diem employee at the Clinic. The letter states in part: As I explained, like all the other VM Clinics, we have been asked to take a hard look at our staffing numbers. We certainly want to have sufficient staff to cover our pa- tient needs, but we also must make sure we are using our DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 930 staffing wisely and that we are providing work especially for those who have designated FTEs. As I referenced in our conversation with you and Karla, the need for less per diem staff is directly related to changes over the last few months in our physician staff and the need to adjust the hours of regularly scheduled employees to enable use to schedule them according to their coded hours. This was not an easy decision to make, nor did we take it lightly or hastily without considering the impact on the Clinic. Maree, I want to thank you again for your dedication and commitment to the Winslow Clinic. I know it has been difficult to adjust to all of the changes taking place especially with your need to contain your availability to only 3 days a month. But it is very hard to stay current in one’s practice and to adjust to ongoing changes without working on a more regularly scheduled basis. It is also more difficult to schedule per diems that have greater re- strictions on the availability than others. c. The schedule change of Rerecich At the September 22, 2003 bargaining session, the Respon- dent told union negotiators that the Clinic was going to change employee Rerecich’s schedule from 4 10-hour days to 5 8-hour days. The Union responded that it did not have a problem with her schedule change so long as it was “okay” with Rerecich. On September 24, 2003, Rerecich received a voice mail to come into the office and discuss a schedule change. The next day Rerecich reported to work and was told she would be meet- ing with Mather and Hazelton. Rerecich testified as to what happened at the meeting: I went up to Terri [Hazelton’s] office and Karla and Terri were there and I believe it was Terri who informed me that my schedule would be changing and she said that I would be now working five 8-hour days and so that I would be covering the internal medicine team all five days. . . . . I did not say anything. I did not feel it was an area that I could enter into or discuss because I had just received the written reprimand shortly before that. So I simply asked what my hours would be and what time they wanted me to come and what time they wanted me to leave. Q. Were you given any choice in deciding whether you wanted to change the schedule? A. When it was presented to me, it was—I did not feel there was any room for any discussion, that it was a done deal. B. Analysis and Conclusions 1. The Rerecich discipline—Complaint paragraph 6 The General Counsel argues that the September 2 verbal counseling and the September 8, 2003 written warning to Rere- cich were each directed to Rerecich’s act of sharing information with a fellow employee concerning terms and conditions of employment. Such actions are protected, the Government ar- gues, citing Kinder-Care Learning Centers, Inc., 299 NLRB 1171 (1990). The General Counsel emphasizes that the Re- spondent has no rule limiting employee disclosure of matters concerning working conditions to fellow employees and that there was no restriction or limitation by the Respondent put on the memo shared. The counseling on September 2, the General Counsel notes, was specifically directed to that protected con- duct and under the Respondent’s procedures is part of a pro- gressive discipline system. Further, argues the General Coun- sel, the September 8, 2003 written warning built on that coun- seling session, specifically referring to it as part of “a pattern of unprofessional behavior” which if repeated could lead to termi- nation. Thus, the warning noted: “If there are further demon- strations of such unacceptable behaviors, it may lead to further disciplinary action up to and including termination of employ- ment.” The Respondent makes several arguments. First, the Re- spondent notes that the written warning of September 8, 2003, addresses not the release of the memo but rather an independent and important breach of patient confidentiality that is not under challenge as improper by the General Counsel. Second, the Respondent notes that the basis for the Respondent’s discussion with Rerecich about the memo at no time dealt with the content of the memo, but rather the consequences of its release, i.e., staff disruption. The General Counsel’s cited cases and a host of others make it clear that employees engage in protected activity when they discuss working conditions with fellow employees. There were no special rules or restrictions put in place by the Respondent, which limited those rights at the workplace during working hours. The Respondent does not directly challenge this propo- sition, but rather asserts that it was not the content of the memorandum that caused the Respondent to counsel Rerecich but rather that she “shared with others a committee e-mail that the committee—not VM management—intended to keep confi- dential” and “the disruption caused by her conduct.” (R. Posthearing Br. at 20.) Based on the record as a whole, including the arguments of the parties, I find that Rerecich was engaged in protected activ- ity in passing along the memorandum, I further find that the Respondent may not rely on the “disruption” that Rerecich’s protected conduct apparently caused to justify imposition of discipline. The events under challenge occurred during the period when the Union was engaged in bargaining for an initial contract. Employees frequently have differing views respecting the entire process. Matters involving employee consideration and discussion of workplace morale and suggestions addressing them are often not matters of somnolent indifference to em- ployees. Disruptions may well occur among employees in such a context. But the employer, the Respondent here, is not enti- tled to discourage or chill such protected activity because other employees became unhappy with it. Protected activity does not lose its protected character simply because it does not find fa- vor with other employees. I find and conclude the Respondent’s counseling was pun- ishment for protected activity and was explicitly designed to discourage such activity in future. And, given the context, the Respondent will not be heard to suggest that it did not or could not reasonably know that its September 2, 2003 counseling session would have such an effect: That was its purpose. I find that the Respondent violated Section 8(a)(1) of the Act by VIRGINIA MASON MEDICAL CENTER 931 counseling Rerecich on September 2. I therefore sustain com- plaint paragraph 6(a). The Respondent argues that the September 8, 2003 written warning was directed to other nonprotected conduct and not the sharing of the memorandum. The Respondent is correct that the patient case confidentiality discipline is the precipitating circumstance for the warning and discipline based on that con- duct is not under challenge by the General Counsel. The Re- spondent is not correct, however, that the warning of September 8 does not incorporate and, in the sense of a progressive disci- pline system, build on the memorandum’s release and the Sep- tember 2, 2003 counseling regarding it. Since the September 8, 2003 warning incorporates the earlier improper discipline for Rerecich’s protected activity, it also improperly punishes the employee for engaging in that protected activity. Indeed the September 2 counseling session and the conduct it condemned was explicitly included in the list of conduct on the September 8 warning, coupled with the unambiguous statement that a re- peat of such conduct by Rerecich would cause further discipline to be administered. Thus, the protected conduct is specifically forbidden to Rerecich in the future and the warning threatens further discipline for engaging in such protected activity in future. The warning is so infused with reference to the earlier protected sharing of the memo that it is not possible to separate the portions of the memo directed to the more recent events involving patient confidentiality. I therefore find that the Re- spondent violated Section 8(a)(1) of the Act by issuing the written warning to Rerecich on September 8. I sustain com- plaint paragraph 6(b). 2. The prewithdrawal of recognition bargaining allegations6 —Complaint paragraph 7 The prewithdrawal of recognition bargaining allegations dis- cussed below are alleged in complaint paragraph 7(b) to consti- tute unilateral changes taken “without prior notice to the Union, and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct and the effects of this conduct.” a. The terminations of Janetos and Zawoysky The General Counsel argues that Janetos and Zawoysky were laid off without the Union being informed of and provided an opportunity to bargain respecting their layoffs. The Gov- ernment asserts these two individuals represented some 10 percent of the bargaining unit and the Respondent was obli- gated to bargain with the Union before laying them off. The General Counsel argues, on brief at 10–11: Normally layoffs after a union certification are not a man- agement prerogative and are a mandatory subject of collective bargaining. Farina Corp., 310 NLRB 318 (1993); Porta- King Building Systems, 310 NLRB 539 (1993). The Board 6 While the Respondent raises various defenses to its bargaining ob- ligation as of and after the date of its withdrawal of recognition, it recognized and bargained with the Union generally during the relevant period. The Respondent’s amended answer para. 6(d) admits the Union was the exclusive collective-bargaining representative of unit employ- ees from December 6, 2000, until September 24, 2003—a period in- cluding the time relevant herein. has found that the bargaining obligation occurs even though the layoff in question is permanent rather than temporary. Winchell Co., 315 NLRB 526 (1994). . . . Indeed, an em- ployer may violate Section 8(a)(5) when it lays off a single employee without giving prior notice to the Union. See Fal- con Wheel Division, 338 NLRB 576 (2002) (the Board found that the layoff of one employee constituted a material, sub- stantial, and significant change in the terms and conditions of employment). The Respondent argues that it has a “no-layoff” policy and that it did not layoff, but rather terminated Janetos and Zawoy- sky “pursuant to its practice of ‘cleaning the rosters,’” (R. Br. at 12), i.e., terminating per diem employees who were not work- ing sufficient hours to justify the increased costs of maintaining their per diem status.7 The Respondent argues that this is a longstanding practice and points to documentation received into evidence establishing significant systemwide and Clinic-based terminations of per diem, or on call, employees occurring from 1999. The Respondent concludes on brief at 13: “The termina- tions emanated from [the Respondent’s] long-standing practice: the terminations themselves did not constitute a change in poli- cies or procedures such that notice or an opportunity to bargain was required.” The Respondent further argues that the parties in fact bar- gained over Zawoysky’s termination prior to its implementation in that the Union demanded an increase in the Clinic hours of Waterman and those hours could only have come from Zawoy- sky. The Respondent also notes that the parties discussed the Janetos termination at the June 24, 2003 negotiations.8 Further, counsel for the Respondent emphasizes the Union never asked for preimplementation notice of termination of per diem em- ployees and never asked for additional bargaining on the mat- ters at issue here. It is critical at the threshold of the analysis respecting these allegations to establish what was done to these employees and the basis for doing so. The allegations of the complaint sound only in a violation of Section 8(a)(5) of the Act. No contention has been made that the Respondent took the action it did be- cause of the employees’ protected activities or in order to ma- nipulate the size of the bargaining unit. Based on the record as a whole, I find that the Respondent terminated each employee and did not lay them off as the Gov- ernment contends. The Respondent’s internal treatment of them as terminated makes this clear. Further, I find that for purposes of the analysis herein, the two individuals were termi- nated because the Respondent made a determination that the extent of availability of the two as per diem employees was insufficient to justify their retention on the employee roster. 7 The number of employees on staff, which in this sense includes per diem employees, is a factor in the calculation of certain insurance costs. Thus, the Clinic bears an incremental insurance cost—the amounts were not litigated—for per diem employees on the roster. 8 The Union raised the Janetos situation when it learned of her ter- mination after the fact. It noted to the Respondent that Janetos was a good employee and that the Respondent had tentatively agreed to keep per diem employees on the roster for up to a year. The Respondent suggested it would consider the proposal. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932 Additionally, I find that the Respondent has established a past practice both systemwide and at the Clinic in which it regularly removes individuals from the per diem roster by terminating them when the Respondent concludes their limited work avail- ability is not sufficient to justify their retention as per diem employees. Given the above: Was the Respondent obligated under the Act to provide notice and an opportunity to bargain to the Un- ion before it terminated Janetos and Zawoysky? The General Counsel, citing several administrative law judge decisions, argues that an employer has an obligation to bargain over changes in unit composition, including terminations in newly certified units, even if the employer was following established practice because “it affected a change in the employee’s status as an employee, and is at odds with established Board and judi- cial precedent, which holds that an employer must maintain the status quo during initial bargaining with a newly certified union and must notify the union before it effects a change in a manda- tory subject of bargaining.” (GC Br. at 13.) Administrative law judge decisions are not binding precedent and the Board cases cited by the General Counsel9 are not definitive on the point at issue. I find the quoted proposition asserted by the General Counsel has not been adopted by the Board. The Respondent, citing Fresno Bee, 337 NLRB 1161 (2002), and Praxair, Inc., 317 NLRB 435 (1995), notes that the Board traditionally requires informing the Union of the rules and stan- dards for employees, but does not require predetermination notification of the application of those rules if they are applied in a manner consistent with past practice. Unless and until the Board adopts the standard the General Counsel advances or some other standard, the Respondent’s cited cases are persua- sive. Further, I find no unsatisfied obligation to bargain over the effects of these terminations. Accordingly, I find there was no unfulfilled obligation on the part of the Respondent to bargain over the contemplated terminations of Janetos and Zawoysky either before or after their terminations. I shall therefore dis- miss complaint paragraphs 7(a)(1) and (2). b. Rescheduling hours of work for Rerecich As described above, the Respondent informed the Union it intended to change Rerecich’s hours at a bargaining session and the Union answered it agreed as long as Rerecich approved. Thereafter, Rerecich was informed by management of the change, she acquiesced, and the change was thereafter imple- mented. The General Counsel argues, on brief at 18, that the “Re- spondent did not seek her approval in a noncoercive fashion, and thus violated its bargaining obligation.” The Government argues that given Rerecich’s earlier discipline, found violative supra, she was particularly sensitive to possible additional em- ployer discipline. In that context, she would reasonably have been unwilling to disagree with the Respondent’s proposed schedule change and therefore the Union’s condition on its approval of the change, i.e., that she approve, was not met. 9 Our Lady of Lourdes Health Center, 306 NLRB 337 (1992), and Ryder Distribution Resources, 302 NLRB 76, 90 (1991). The General Counsel makes two additional arguments. The General Counsel argues, on brief at 18: First, Rerecich had requested representation [and] was told that it was not necessary. Had [the] Respondent answered yes, the Union would have been present with Rerecich to in- form her that it was her choice whether she accepted the scheduled change. The Government thus urges that telling Rerecich that she need not have a union representative present was an element in the Respondent’s course of conduct that broke its bargain with the Union. I reject this argument because, under Board doctrine, em- ployee union representation during a meeting with her em- ployer is a right only when discipline is reasonably seen as possible as a result of the meeting. When the Respondent’s agent told Rerecich that, for their meeting, such representation was unnecessary, she was in effect assuring Rerecich that dis- cipline would not be involved in or result from the meeting. In my view Rerecich could reasonably only have taken assurance from the statement made by management, not the reverse as the General Counsel appears to argue. Second, the General Counsel argues that the nature of the meeting with Rerecich at which the schedule change was dis- cussed was inherently coercive and that it was therefore “rea- sonable for Rerecich to conclude that she had no ability to af- fect the schedule change.” I also reject this argument because I find the circumstances of the Respondent’s meeting were not improper or unreasonable. Thus, I find that, while Rerecich may have been unsettled during the arrangement of the meeting and in the meeting itself, the Respondent did not behave in an improper manner such that it would be held to have violated the earlier bargaining table agreement. And, since the Union had made the bargaining table agreement described without seeking time to contact Rerecich or to contemplate the matter further, no assertion that the Union had insufficient time to bargain about the change will stand. Based on all the above, I find the Respondent did not violate Section 8(a)(5) and (1) of the Act respecting the Rerecich schedule change. I shall therefore dismiss complaint paragraph 7(a)(3). 3. The withdrawal of recognition allegation—Complaint paragraphs 5 and 8 Paragraph 5(a) of the complaint alleges the unit is appropri- ate for collective bargaining within the meaning of the Act and the Respondent’s amended answer denies that allegation. Complaint paragraph 5(b) alleges a majority of employees in the unit selected the Union as their representative in a Board election conducted in Case 19–RC–14016 and complaint para- graph 5(c) alleges the Union was certified as the representative of the unit in Case 19–RC–14016 on December 6, 2000. The Respondent’s amended answer admits these latter allegations. Complaint paragraph 5(d) alleges that at all times since the Union’s certification it has been the representative of unit em- ployees. The Respondent’s amended answer admits the Un- ion’s exclusive status until September 24, 2003, “when the Union no longer had [the] support of the majority of the em- VIRGINIA MASON MEDICAL CENTER 933 ployees within the Unit.” Finally, paragraph 8 of the complaint alleges and the amended answer admits that the Respondent withdrew its recognition of the Union on September 26, 2003, and paragraph 9 of the complaint alleges and the answer denies that the withdrawal constitutions a violation of Section 8(a)(5) of the Act. There is no dispute that the Respondent on and after that date has withheld and continues to withhold recognition of the Union and continues to refuse to bargain with it. The Respondent asserts it was proper for it to withdraw rec- ognition from and refuse to bargain with the Union, on and after September 26, 2003, for two independent reasons. First, the Respondent contends that by the date of its withdrawal of recognition the bargaining unit was no longer appropriate for collective bargaining under applicable Board law. Second, the Respondent contends that as of September 24, 2003, it was relieved of any obligation to bargain with the Union because it learned that the Union no longer enjoyed the support of a ma- jority of employees in the unit as evidenced by the fact that nine10 unit employees on or about September 23, 2003, signed and provided to the Respondent the employee petition quoted in full above opposing union representation. These two contentions merit separate consideration. a. The appropriateness of the bargaining unit Under the Act an employer’s collective-bargaining obliga- tion is to bargain with respect to an appropriate unit of employ- ees. In the instant case, as set forth in detail above, the Board found the bargaining unit appropriate on April 18, 2001, and the court of appeals enforced that determination on May 28, 2002. The Respondent contends that as of September 26, 2003, the unit was inappropriate. The Respondent does not base its claim on a change in the factual circumstances of the instant unit. Indeed the factual evidence submitted into evidence by the Respondent in support of its unit claim herein is the identical record that had been before the Board and the court in making their findings in the unfair labor practice case, discussed supra, that the unit is ap- propriate. Rather the Respondent contends that the Board’s decisional law has changed and that the new Board law com- mands reversal of the Board and court of appeal’s earlier find- ings that the unit is appropriate. The Respondent bases its argument on four Board cases: St. Luke’s Health System, 340 NLRB 1176 (2003); Budget Rent-A- Car Systems, 337 NLRB 884 (2002). Trane, 339 NLRB 866 (2003), and Dattco, Inc., 338 NLRB 49 (2003). These cases do not cite let alone reverse the Board’s unit determination re- ported at 333 NLRB No. 125 (2001) (not reported in Board volumes). Rather the cases deal with unit issues of the type involved in the unit determination herein in a manner, the Re- spondent argues, which favors, indeed requires, a different result. The General Counsel notes on brief at 20: 10 The parties were in agreement respecting the identity and unit in- clusion of 18 unit employees, which group included the 9 petitioner signers. The parties disagree regarding the unit placement at the time of the withdrawal of recognition of Janetos and Zawoysky. It is well settled that absent special circumstances, or newly discovered evidence that was previously unavailable, the Board will not reexamine an underlying certification or repre- sentation case. KI Corp., 310 NLRB 1233 (1993), citing Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 162 (1941). The General Counsel argues further that the cases cited by the Respondent on the issue not only do not represent a change in the law, they are simply but a few of a multitude of cases in which the Board has applied its balancing tests to reach differ- ent results in considering bargaining unit appropriateness in different situations and circumstances. The Government asserts that the Respondent is simply seeking to reargue an issue it lost on the same evidence in the earlier case but now advances yet again in the present case and that the Board does not allow a de novo review of the underlying unit appropriateness and the Union’s certification in these circumstances citing Nursing Center of Vineland, 318 NLRB 901 (1995). Based on the record as a whole, and essentially for the rea- sons cited by the General Counsel, I find that it is inappropriate to reconsider the unit issue herein. I therefore find that the original unit is appropriate and reject the Respondent’s contrary arguments. The cases cited by the Respondent simply do not compel a different unit result and, in the context of this case, do not allow a rejection of the earlier unit findings made by the Board and the court of appeals. b. The issue of loss of majority status It is critical to an analysis of the issues raised by the Respon- dent’s withdrawal of recognition, and its contention of Union loss of majority support as justifying the withdrawal, to under- stand the special rules which control the Board’s postelection certification period. First, and of critical significance to con- sidering the issues herein, a certified union must be recognized as the exclusive representative of unit employees and bargained with on its request by the certified unit employees’ employer for a full year following the union’s certification. Thus, the certification period is often referred to as the certification year. Based on longstanding Board doctrine, an employer simply may not withdraw recognition and bargaining based on issues of employee support during the certification year. The Board has put this rule in place to provide stability in bargaining for an initial period following certification and to allow the new employee representative an opportunity to enter into an initial collective-bargaining agreement with the em- ployer. During the certification year, a majority of unit em- ployees are by explicit Board ruling simply and irrebuttably presumed to support the certified representative. This has im- plications beyond the earlier proposition that an employer may not withdraw recognition based on loss of employee support for the Union during the certification year. Given this irrebuttable presumption of employee support for the certified union during the initial certification period, actual evidence of loss of such support may not be used by an employer to withdraw recogni- tion, even when the certification year has passed at the time the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934 employer withdraws recognition. Chelsea Industries, Inc., 331 NLRB 1648 (2000), enfd. 285 F.3d 1073 (2002).11 Following the end of the certification period, in the absence of a contract, the union enjoys a rebuttable presumption of ma- jority employee support. The presumption establishes a prima facie requirement that the employer continue to recognize and bargain with the union. That prima facia case may be rebutted, however, if the employer affirmatively establishes that at the time of its withdrawal of recognition, the union no longer has the support of a majority of unit employees. The Respondent’s basis for abandoning bargaining and with- drawing recognition of the Union, other than the argument that the bargaining unit was inappropriate, rejected above, is the proposition that on September 23, 2003, as communicated to the Respondent on September 24, 2003, in the form of an em- ployee petition, the Respondent had evidence that the Union no longer had the support of a majority of unit employees. Im- plicit in the Respondent’s argument is the proposition that these events occurred at a time when there was no legal restriction or prohibition on either: (a) the Respondent’s reliance on em- ployee sentiments, or (b) the Respondent’s right to withdraw recognition based on those sentiments or for any reason. Through the argument and analysis, it is necessary to be aware that there are two separate certification period restric- tions at issue: one deals with limitations on the time employee sentiments may be measured and the second is the period dur- ing which the employer may take action of those sentiments. The threshold issue respecting the Respondent’s argument is whether or not either or both of the events involved herein: i.e., the date of the Respondent’s withdrawal of recognition and, second, the date or dates on which the employees sentiments were polled, occurred during the certification period. It is ap- propriate to initially consider those issues, which require a re- view of the chronology of events. The Union was certified on December 6, 2000. The dates the employee sentiment at issue was expressed and the date of the Respondent’s withdrawal of recognition each fell in late September 2003, far more than a year after the date of the Un- ion’s certification. The certification year period however is susceptible to extension in certain circumstances and that was the case herein. The Respondent did not agree with the Board’s finding of unit appropriateness and sought judicial review of that resolu- tion which, under Board procedures, required the Respondent to refuse to recognize and refuse to bargain with the Union after its certification. The Respondent therefore refused to recognize the Union or commence bargaining. The Board’s unfair labor practice proceeding took place and a Board decision issued. As quoted supra, the Board ordered the Respondent to recognize and bargain with the Union and held as part of its remedy: To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as be- ginning the date the Respondent begins to bargain in good 11 The Board has provided potential de minimus exceptions to this rule that will be discussed, infra. faith with the Union. [333 NLRB No. 125, slip op at 2 (2001) (not reported in Board volumes).] The court of appeals enforced the Board’s order and thereafter, as set forth in detail supra, the Respondent and the Union en- gaged in a series of actions culminating in face-to-face bargain- ing starting on October 1, 2002. The parties differ on the sig- nificance of these preface-to-face bargaining events to the ques- tion of when the certification period commenced. The issue as to that matter is: when under Board law in this context did the Respondent begin to bargain with the Union so as to start the running of the certification period? The Respon- dent had recognized the Union and provided information to it respecting unit employees in June 2002. The parties first physically met and bargained on October 1, 2002. If bargain- ing started in June 2002, well over a year had passed in bar- gaining before the September 24 and 26, 2003 events at issue herein and the certification period limitations under considera- tion herein are not applicable to the Respondent’s actions. If bargaining began with the first face-to-face meeting on October 1, 2002, then the certification year had not concluded in the month of September 2003, and employee support for the Union was irrebuttably presumed and could not be alleged by the Re- spondent to be otherwise and, independently of the majority issue, the Respondent could not in any event withdraw recogni- tion based on a purported loss of employee support for the Un- ion. Counsel for the General Counsel asserted at trial that the September 2003 events in controversy here occurred during or within the certification period. Counsel for the General Coun- sel took the position: “What we are saying, or our position, is that we are. We are saying that the bargaining began in Octo- ber of 2002 and that the events of September of 2003 are within one-year period” and “our position is that the information re- quest is not enough to trigger the one-year bargaining period.”12 12 The Respondent argues on Br. at 18: The General Counsel did not allege in the complaint any fail- ure to provide the Union with a full 12 months of bargaining. In- deed the General Counsel did not raise the issue. Under these facts, [the Respondent’s] withdrawal of recognition was appropri- ate and lawful. At the conclusion of the General Counsel’s case-in-chief, just before the Government rested, I noted on the record—apparently for the first time—the seemingly evident fact that the record evidence of the bar- gaining session chronology suggested that the parties time in face-to- face bargaining did not span a full calendar year and, in light of the certification year extension in the earlier Board case, asked the parties their positions respecting the certification year issue. The General Counsel and the Respondent counsel took the positions noted. The Respondent was therefore explicitly on notice of the issue from the time the Government rested. The General Counsel did not address the certification year issue in its posthearing brief, however I find it inap- propriate to conclude the General Counsel has abandoned it on the record position as quoted above. Given all the above, I find no basis to reject the Government’s argument. The Ninth Circuit Court of Appeals in NLRB v. National Medical Hospital of Compton, 907 F.2d 905, 907 (9th Cir. 1990), discussed precisely the Respondent’s claim here that the complaint did not dis- close the “certification year” issue finding the employer there had a full and fair change to litigate the issue. I find that is also true here where VIRGINIA MASON MEDICAL CENTER 935 The Respondent makes several arguments regarding when the certification period began in the instant case. First, it argues that for purposes of establishing when bargaining began, the triggering date is the date the Respondent responded to the Union’s bargaining information request in June 2002. Second, it argues that, even if the date of commencement of bargaining is generally held to be the date of first meeting and face-to-face collective bargaining, other factors justify the Respondent’s conduct herein. Thus the Respondent argues that the cases consider both a labor organization’s delay and procrastination in initiating bargaining and, further that the cases are flexible when the employer takes action based on events occurring a very short time before the end of the certification period. Turning to the first argument of the Respondent, I find that the appropriate date for determining the start of the certification year herein is the date the parties first met in face-to-face bar- gaining, October 1, 2002. The Board, with court approval, has specifically held in this context that the date of commencement of bargaining is the date of the first formal bargaining and not the date other earlier actions such as the time an agreement to bargain occurs or prebargaining information is requested or supplied. Dominguez Valley Hospital, 287 NLRB 149 (1987), enfd. sub. nom. NLRB v. National Medical Hospital of Comp- ton, 907 F.2d 905, 907 (9th Cir. 1990); Van Dorn Plastic Ma- chinery Co. v. NLRB, 939 F.2d 402, 404 (6th Cir. 1991) (spe- cifically overruling prior law using the date of provision of information); Jasco Industries, 328 NLRB 201, 201 (1999). See also Chelsea Industries, 331 NLRB 1648 fn. 4 (2000), enfd. 285 F.3d 1073 (D.C. Cir. 2002); L. Suzio Concrete Co., 325 NLRB 392 fn. 8 (1998), enfd. 173 F.3d 844 (2d Cir. 1999). The Respondent’s assertion that the conduct of the Union during the period preceding the beginning of bargaining is rele- vant in evaluating if special circumstances apply to the begin- ning of a particular certification period has Board support. The Board in Dominguez Valley Hospital, supra, made this clear: Of course, if there is a significant delay in the commencement of bargaining attributable to inexcusable procrastination or other manifestations of bad faith on the part of the bargaining representative, equating the commencement of the certifica- tion year with the first bargaining session would not be war- ranted. [Supra at 150.] The court, in enforcing the decision, specifically approved of the Board’s qualification of the rule to prevent unions from manipulating it to their advantage. NLRB v. National Medical Hospital of Compton, 907 F.2d at 907. The Board discussed this caveat in Van Dorn Plastic Ma- chinery Co., 300 NLRB 279 278 fn. 4 (1990): Of course, if there is a significant delay in the start of bargaining attributable to inexcusable procrastination or other manifestation of bad faith on the part of the union, then equating the start of the certification year with the first bargaining session would not be warranted. Dominguez Valley Hospital, supra. We find no such pro- crastination here. the issue was discussed at some length before the General Counsel concluded his case in chief. Although the instant case does not afford an occasion to outline the possible indicia of procrastination and bad faith, it would be appropriate to consider whether a union has refused, without adequate explanation, requests by a ready and willing employer to commence bargaining ne- gotiations. In this way, the rule announced today does not leave the commencement of the certification year within the unrestricted discretion of one of the parties. . . . Turning to the record evidence of the period of time between the May 28, 2002 court of appeals enforcement of the Board’s bargaining order in the earlier unfair labor practice case and the physical meeting of the parties in face-to-face bargaining on October 1, 2002, the following chronology is evident. Follow- ing the court’s order on May 28, 2002, the Respondent posted the required Board notices on June 20, 2002. The notices were apparently posted for the requisite 60 days, i.e., until about August 20, 2002. Following the conclusion of notice posting, Regional office compliance monitoring was concluded in due course and the case was administratively closed soon thereafter. The Union asked for prebargaining information on June 25, 2002, and the Respondent provided the requested information within a few days. On August 28, 2002, the Union requested the Respondent meet to negotiate on October 1, 2, or 3, 2002. On August 30, 2002, the Respondent accepted the October 1, 2002 date for the first bargaining session. The record contains no evidence of the parties’ activities dur- ing this period other than that recited above. There is no evi- dence of why the Union undertook the efforts it did at the times it did. There is no evidence that the Respondent complained of the scheduling of events or of delay in beginning face-to-face bargaining. Examining the chronology of events without more, it is impossible to find “significant delay in the commencement of bargaining attributable to inexcusable procrastination or other manifestations of bad faith on the part of the bargaining representative.” I reach this conclusion for several reasons. First, the Board has made it clear that a labor organization is justified in taking the time necessary to renew contacts and support among unit employees whose desire for and support of union representation is likely tested by the substantial period of time that passes after the election but before the court orders bargaining during which the employees go without an employer recognized collective-bargaining representative. It is a simple, if regrettable, fact of life in the way the statute is structured, in the Board’s administration of the representation side of the Act, and in the process of judicial review of the Board certifications of representatives, that years rather than months must pass from Board certification of a union to a final court order requiring that the employer recognize the union. In both the Board and the enforcing court of appeals’ decisions in the Van Dorn Plas- tic Machinery Co. and Dominguez Valley Hospital cases, supra, the Board and the court of appeals discussed and rejected em- ployer arguments regarding argued union delays in starting face-to-face bargaining of the type advanced by the Respondent herein. Thus, for example the Sixth Circuit explicitly recog- nized the undermining effect the passage of time that occurs during the litigation of certifications and the time the union might need to get back up to speed: “[T]he Union is fairly entitled to the three or four months it took to reestablish its ties DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936 with the members of the bargaining unit.” Van Dorn Plastic Machinery Co., 939 F.2d 402, 404 (6th Cir. 1991). Second, the Respondent, as the employer arguing that the equities require the certification period be shortened, is assert- ing an affirmative defense and the burden of proof as to this matter is explicitly on it. The basis in the cases for shortening the period is the union’s “inexcusable procrastination or other manifestation of bad faith.” The Respondent submitted no evidence beyond the chronology discussed to show Union bad faith. There was no suggestion that the Respondent complained or protested the passage of time that passed before the first scheduled face-to-face meeting for bargaining. I find the Re- spondent has not met its burden of proof to show that the Un- ion, in the period before the first bargaining session, engaged in any inexcusable procrastination or other manifestation of bad faith. I find therefore that the beginning of the certification period on the facts of this case is the date of the parties first face-to-face bargaining session: October 1, 2003. The Respondent also argues that it is simply inequitable to disallow its reliance on employee dissatisfaction because it was but a few days short of the end of the certification period. The Respondent cites two recent cases in support: LTD Ceramics, Inc., 341 NLRB 86 (2004), and Lee Lumber & Building Mate- rials Corp., 334 NLRB 399 (2001).13 The Board in LTD Ce- ramics addressed the employer’s ability to withdraw recogni- tion in reliance on a decertification petition signed by 97 out of 171 employees. Forty-nine employees signed the petition on the final day of the certification year, the remaining 48 employ- ees signed in the next 5 days. The employer withdrew recogni- tion in reliance on the petition the following day, 6 days after the end of the certification year’s expiration. In LTD Ceramics, Inc., the Board held at page 88: We are unwilling to conclude that the Respondent’s reliance on a decertification petition received after the certification year is invalidated by the fact that some employees signed the petition on the final day of the certification year. In this re- gard, we agree with the judge, for the reasons set forth in his decision, that the circumstances of this case are quite different from those in Chelsea Industries, 331 NLRB 1648 (2000), enfd. 285 F.3d 1073 (D.C. Cir. 2002), in which the Board held that an employer could not withdraw recognition on the basis of a decertification petition signed by employees and re- ceived by the employer 5 months before the end of the certifi- cation year. The judge in the case had held at page 94: In the case at issue, some of the signatures were collected dur- ing the last hours of the last day of the certification year. It is therefore not a question of months or days before the certifica- tion year has expired but a question of hours. I cannot, and do not, find that I can believe that the Board meant for its rules announced in cases such as Centr-O-Cast and Chelsea to be applied in such a rigid and mechanistic way as to void what I have found to be otherwise perfectly valid expressions of the 13 Lee Lumber & Building Materials Corp. is not on point because it deals with “bargaining for a reasonable period” remedies rather than representation case certification periods. employees’ sentiments. The Board does not lightly make use of the doctrine of de minimus. But I believe that it would fault me if I were not to do so here. Accordingly, I find and conclude that the petition was not invalidated because some of the signatures thereon were placed there during the last hours of the last day of the certification year. Instead, I find that their prematurity was so slight as to be insignificant in this case, especially in view of the fact that, as found else- where herein, there is no basis to find that Respondent partici- pated in or encouraged the gathering of the signatures on the petition. The Board’s LTD Ceramics decision allows a de minimus exception to the proposition that employee sentiment expressed during the certification year may not be used by an employer to justify postcertification period withdrawal of recognition. To the extent it allows any certification year sentiment, even that sentiment “collected during the last hours of the last day of the certification year,” to be used as employer evidence of the un- ion’s loss of majority employee support, it supports the Re- spondent’s argument here. Having considered the cases and the Respondent’s argument in light of the entire record herein, I do not find the cited case or the de minimus doctrine as applied by the Board in that case controls the result in the instant case for the following reasons. First, and critically, LTD Ceramics modifies, to at least an extent, the Board’s Chelsea Industries standard by which the Board up to that point held, without exception, that certification year sentiments of employees may not be used by an employer, even after the expiration of the certification year, to withdraw recognition of the certified union. The case does not address the separate and independent issue relevant herein of certifica- tion year limitation or prohibition of an employer’s withdraw- ing recognition and ceasing bargaining during the certification year. This is an important distinction because the Board’s rationale underlying the certification year limitations on an employer’s right to end bargaining is to give the newly certified union en- gaged in initial contract negotiations a guaranteed uninterrupted year of bargaining. The Board’s holding in LTD Ceramics does not address this, in effect, guaranteed period. The limits on the employer’s actions during that period were irrelevant because on the facts of LTD Ceramics, the certification year had ended well before the employer withdrew recognition. In effect in LTD Ceramics the labor organization had its guaranteed one year of bargaining. If the Respondent’s argument in the instant case is to be accepted and it is allowed to withdraw recognition within the certification year itself, the certification year would no longer be an insulated period for undistracted, uninterrupted bargaining. Rather the first year of bargaining for an initial contract will be susceptible to bargaining clouded by claim and counterclaim respecting union majority support among em- ployees—precisely the type of dispute the Board has explicitly tried to avoid in the initial certification setting. And the first year of bargaining will also be susceptible to interruption by employer withdrawal of recognition and or cessation of bar- gaining or be undermined by the threat of withdrawal from or cessation of bargaining. This result the Respondent advances here seems to run contrary to the Board’s efforts to achieve VIRGINIA MASON MEDICAL CENTER 937 stability in the first year of initial bargaining and should not lightly be inferred from collaterally applicable cases. Accord- ingly, I find the holding in LTD Ceramics is not relevant to the critical factor at issue herein, whether the certification year may be shorted by allowing certification year withdrawal of recogni- tion. Second, even as to the question of whether employee senti- ments may be relied on if taken during the certification period, I find the LTD Ceramics decision is distinguishable on its facts from the situation presented herein. The LTD Ceramics case involved a portion of a large group of employees who ex- pressed their sentiments regarding the union a very short period of time before the certification year ended: “not a question of months or days before the certification year has expired but a question of hours.” While the employee sentiments herein were expressed, but a week before the expiration of the certifi- cation year, that 7-day period is significantly longer than the period of hours involving, but a portion of the employee senti- ments at issue in LTD Ceramics. The de minimus argument that persuaded the Board in LTD Ceramics in my view does not extend to the factual situation presented here. Given all the above, I find there is no basis to shorten the certification year or to allow or permit the Respondent on the facts of this case to withdraw recognition on an assertion of union loss of majority employee support during the certification year. Further, I find it inappropriate on the facts of this case for the Respondent to rely at any time on expressions of employee sentiment occurring a week before the end of the certification year. Since the Respondent was foreclosed from withdrawing rec- ognition from the Union during the certification year based on purported the Union’s loss of majority employee support, it violated Section 8(a)(5) and (1) of the Act in so doing. I there- fore will sustain complaint paragraph 8. c. Summary and conclusions regarding withdrawal of recognition I have found that the Union was certified in Case 19–RC– 14016 on December 6, 2000 as the representative of the Re- spondent’s unit employees and that the unit at all relevant times has been appropriate for collective bargaining. I have therefore rejected the Respondent’s assertion that it had no obligation to continue to recognize or bargain with the Union on and after September 26, 2003, because the unit was inappropriate for bargaining. I have further found as a result of the Board’s Order of April 18, 2001, enforced by the court of appeals on May 28, 2002, that the initial period of the certification began on the date the Respondent began to bargain with the Union, i.e., October 1, 2002. In reaching this conclusion, I have rejected the Respon- dent’s argument that the Union engaged in inexcusable procras- tination or other manifestations of bad faith in the period before bargaining commenced. Given my finding that the certification year commenced on October 1, 2002, I further find that the Respondent was pre- cluded from withdrawing recognition from the Union until the certification year ended on September 30, 2003. Since it with- drew recognition and simultaneously failed and refused to con- tinue bargaining with the Union on September 26, 2003, the Respondent violated Section 8(a)(5) and (1) of the Act in so doing. As a separate and independent conclusion, given my finding that the certification year commenced on October 1, 2002, I find that the Respondent was precluded from relying on any expressions of employee opposition to union representation made before the end of the certification year on September 30, 2003, as a basis for withdrawing recognition from the Union. More particularly I have found that the employee petition signed by employees on September 23 and 24, 2003, may not be relied on. In making this finding, I have considered and rejected the Respondent’s argument that the employee senti- ment was expressed so close to the end of the certification pe- riod that the doctrine of de minimus should be applied to allow the sentiment to be relied on. The Respondent was obligated by the earlier Board and court orders to recognize and bargain with the Union. Since the Re- spondent was foreclosed from relying on employee sentiments expressed during the certification year on September 23 and 24, 2002, the Respondent offered no valid basis for withdrawing recognition from and ceasing bargaining with the Union, irre- spective of whether or not—as found supra—it took its actions during the certification year. I find therefore that the Respon- dent violated Section 8(a)(5) and (1) of the Act in so doing. Given all of the above, and further because of my finding that it is inappropriate for an employer to rely on employee sentiments expressed at least a week before the end of the certi- fication period, it is unnecessary to determine if the petition signed by employees on September 23, and submitted to the Respondent on September 24, 2003, provides evidence of a loss of majority employee support for the Union as of September 26, 2003. REMEDY Having found that the Respondent violated the Act as set forth above, I shall order that it cease and desist therefrom and post remedial Board notices. Further the language on the Board notices will conform to the Board’s decision in Ishikawa Gas- ket America, Inc., 337 NLRB 175 (2001), that notices should be drafted in plain, straightforward, layperson language that clearly informs employees of their rights and the violations of the Act found. The remedy for the Respondent’s wrongful discipline of em- ployee Rerecich shall include traditional expongement and notification requirements. The remedy for the Respondent’s wrongful withdrawal of recognition presents special issues for any remedy will not be not based simply on the violation of Section 8(a)(5) of the Act found herein, but must also take into account the fact that the Respondent’s conduct is a violation of the orders of the Board and the court of appeals in the original unfair labor practice case. In Dominguez Valley Hospital, 287 NLRB 149 (1987), the Board discussed the length of time the employer should be required to bargain in the circumstances presented herein at 151: The judge concluded that the Respondent’s premature with- drawal of recognition from the Union and subsequent refusal DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938 to bargain warranted a 1-year extension of the certification year. Contrary to the judge, we find no basis for a complete renewal of the certification year or for requiring the Respon- dent to bargain for another full year. Thus, the Respondent bargained with the Union in apparent good faith for almost 10 months before its premature withdrawal of recognition—a significant consideration when fashioning an appropriate rem- edy. Contrary to the Respondent’s contention, however, this substantial period of good-faith bargaining does not warrant limiting the Respondent’s bargaining obligation to the re- maining 2 months of the certification year. Instead, given the disruptive effect that the Respondent’s premature withdrawal of recognition has had on the bargaining process, we conclude that a 6-month extension of the bargaining year is appropriate. As the Board held under comparable facts in Colfor, Inc., 282 NLRB 1173 (1987), such a 6-month extension will provide the parties with a reasonable interval in which to resume ne- gotiations and, possibly, reach an agreement, without unduly saddling employees with a bargaining representative they may no longer support. Thus, we shall extend the certification year for an additional 6 months. The court of appeals in enforcing the Board’s decision dis- cussed the remedy required by the Board: The Board here actually rejected the ALJ’s conclusion that there should be a full year’s extension. The Board extended the certification year for only six months. It stated that exten- sion for that period was needed because of “the disruptive ef- fect that the Respondent’s premature withdrawal of recogni- tion has had on the bargaining process. . . . The Board be- lieved a mere 2-month extension would fail to provide a rea- sonable period for the parties to resume negotiations. See also Colofor, 282 NLRB at 1175 (six-month extension ordered al- though parties only two months short of full bargaining year). We recognize the Board’s expertise in structuring remedies for violations of the Act, see General Teamsters Local No. 162, 782 F.2d at 844, and hold that the extension order did not constitute an abuse of discretion. [Medical Hospital of Comp- ton, 907 F.2d 905, 910 (9th Cir. 1990).] The Board in Van Dorn Plastic Machinery Co., 300 NLRB 278 (1990), again in a similar setting, also adopted a 6-month ex- tension of the certification period and the court of appeals en- forced that order, 939 F.2d 402, 404 (6th Cir. 1991). Based primarily on the Board’s teachings as set forth above and the circumstances herein, and based on the record as a whole, I find it appropriate to adopt the remedy set forth in each and include the following affirmative obligation on the Re- spondent: Recognize the Charging Party on resumption of face-to-face bargaining in good faith and for 6 months thereafter as if the initial year of certification had been extended for that period. CONCLUSIONS OF LAW On the basis of the above findings of fact and the record as a whole and Section 10(c) of the Act, I make the following con- clusions of law. 1. The Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. 2. The Charging Party is, and has been at all relevant times, a labor organization within the meaning of Section 2(5) of the Act. 3. The Charging Party represents the Respondent’s employ- ees in the following unit, which is appropriate for bargaining within the meaning of Section 9 of the Act: All registered nurses and all other professional employees employed by the Respondent at its Winslow (Bainbridge Is- land) facility; but excluding all physicians, all nonprofessional employees, and guard and supervisors as define[d] by the Act. 4. The Respondent violated Section 8(a)(1) of the Act on September 2, 2003, by counseling and thereafter on September 8, 2003, by issuing a written warning to employee Jeanette Rerecich because she engaged in the protected concerted activ- ity of sharing materials concerning employee working condi- tions with another employee. 5. The Respondent violated Section 8(a)(5) and (1) of the Act on or about September 26, 2003, by: (a) withdrawing recognition of the Charging Party as the rep- resentative of the employees in the unit described above and failing and refusing to bargain with the Union respecting those employees during the 1-year period of actual bargaining fol- lowing the certification of the Charging Party as the employees representative. (b) withdrawing recognition of the Charging Party as the rep- resentative of the employees in the unit described above and failing and refusing to bargain with the Union respecting those employees at a time when the Charging Party was irrebuttably supported by a majority of unit employees. 6. The unfair labor practices described above are unfair la- bor practices within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent did not otherwise violate the Act as al- leged in the complaint and the complaint allegations not sus- tained herein shall be dismissed. [Recommended Order omitted from publication.]