Veritas Health Services, Inc. d/b/a Chino Valley Medical Center

356 NLRB No. 137 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Veritas Health Services, Inc. d/b/a Chino Valley Medical Center and United Nurses Associations of California/Union of Health Care Profession- als, NUHHCE, AFSCME, AFL–CIO. Case 31– CA–30105 April 12, 2011 DECISION AND ORDER BY MEMBERS BECKER, PEARCE, AND HAYES This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on February 3, 2011, the Acting General Counsel issued the complaint on Febru- ary 14, 2011, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Un- ion’s request to bargain following the Union’s certifica- tion in Case 31–RC–8795. (Official notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and deny- ing in part the allegations in the complaint, and asserting affirmative defenses.1 On March 3, 2011, the Acting General Counsel filed a Motion for Summary Judgment. On March 8, 2011, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its objections to conduct alleged to have affected the results of the election in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine 1 The Respondent asserts that the allegations of the complaint are barred by Sec. 10(b) of the Act. However, the record shows that the charge was filed on February 3, 2011, which is within 6 months of the Respondent’s February 2, 2011 refusal to bargain. Therefore, the charge is timely under Sec. 10(b) of the Act. the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California corporation, has been engaged in the operation of an acute care hospital at its 5451 Walnut Avenue, Chino, California facility (the Hospital). The Respondent, in conducting its business operations described above, annually derives gross revenues from the Hospital in excess of $250,000, and annually pur- chases and receives at the Hospital goods or services valued in excess of $5000 directly from points outside the State of California. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a healthcare institution within the meaning of Section 2(14) of the Act, and that United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL–CIO (the Un- ion) is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on April 1 and 2, 2010, the Union was certified on January 25, 2011, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time, regular part-time and regular per diem registered nurses employed by the Employer at its 5451 Walnut Avenue, Chino, California facility in the fol- lowing departments: Emergency Services, Critical Care Services/Intensive Care Unit, Surgery, Post-Anesthesia Care Unit, Outpatient Services, Gastrointestinal Labo- ratory, Cardiovascular Catheterization Laboratory, Ra- diology, Telemetry/Direct Observation Unit and Medi- cal/Surgical. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 B. Refusal to Bargain Since about January 26, 2011, the Union has requested the Respondent to bargain, and, since about February 2, 2011, the Respondent has refused to do so. We find that this failure and refusal constitutes an unlawful failure and refusal to recognize and bargain with the Union in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about February 2, 2011, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in un- fair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. 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 certifi- cation as beginning the date the Respondent begins to bargain in good 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. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Veritas Health Services, Inc. d/b/a Chino Valley Medical Center, Chino, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL– CIO as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) 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) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time and regular per diem registered nurses employed by the Employer at its 5451 Walnut Avenue, Chino, California facility in the fol- lowing departments: Emergency Services, Critical Care Services/Intensive Care Unit, Surgery, Post-Anesthesia Care Unit, Outpatient Services, Gastrointestinal Labo- ratory, Cardiovascular Catheterization Laboratory, Ra- diology, Telemetry/Direct Observation Unit and Medi- cal/Surgical. (b) Within 14 days after service by the Region, post at its facility in Chino, California, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means.3 Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered 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 Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respon- dent at any time since February 2, 2011. 2 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.” 3 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec- tronic distribution of the notice. CHINO VALLEY MEDICAL CENTER 3 (c) 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. Dated, Washington, D.C. April 12, 2011 Craig Becker, Member Mark Gaston Pearce, Member Brian E. Hayes, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 fail and refuse to recognize and bargain with United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL– CIO as the exclusive collective-bargaining representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing bargaining unit: All full-time, regular part-time and regular per diem registered nurses employed by us at our 5451 Walnut Avenue, Chino, California facility in the following de- partments: Emergency Services, Critical Care Ser- vices/Intensive Care Unit, Surgery, Post-Anesthesia Care Unit, Outpatient Services, Gastrointestinal Labo- ratory, Cardiovascular Catheterization Laboratory, Ra- diology, Telemetry/Direct Observation Unit and Medi- cal/Surgical. VERITAS HEALTH SERVICES, INC. D/B/A CHINO VALLEY MEDICAL CENTER