Bluefield Hospital Company, LLC, d/b/a Bluefield Regional Medical Center

BLUEFIELD REGIONAL MEDICAL CENTER 1389 Bluefield Hospital Company, LLC d/b/a Bluefield Regional Medical Center and National Nurses Organizing Committee, AFL–CIO (NNOC) Greenbrier VMC, LLC d/b/a Greenbrier Valley Med- ical Center and National Nurses Organizing Committee, AFL–CIO (NNOC) Cases 10–CA 093042 and 10–CA– 093065 December 16, 2014 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND SCHIFFER This is a refusal-to-bargain case in which the Re- spondents are contesting the Union's certification as bar- gaining representative in the underlying representation proceedings. Pursuant to charges filed on November 9, 2012, by National Nurses Organizing Committee, AFL– CIO (the Union), the Regional Director issued an Order consolidating cases, consolidated complaint, and notice of hearing on November 29, 2012, alleging that the Re- spondents violated Section 8(a)(5) and (1) of the Nation- al Labor Relations Act by refusing the Union’s request to recognize and bargain following the Union’s certification in Cases 10–RC–087616 (Bluefield) and 10–RC–087613 (Greenbrier). (Official notice is taken of the records in the representation proceedings as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g). Frontier Hotel, 265 NLRB 343 (1982).) The Respond- ents filed an answer, admitting in part and denying in part the allegations in the consolidated complaint, and asserting affirmative defenses. On December 19, 2012, the General Counsel1 filed a motion to transfer cases to and continue proceedings be- fore the Board and for Summary Judgment. On Decem- ber 21, 2012, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion for summary judgment should not be granted. The Respondents filed a response. The Re- spondents also filed an amended answer to the consoli- dated complaint asserting an additional affirmative de- fense, which alleged that the affiliation of the Union with another labor organization created a lack of continuity of representation.2 1 Although some actions in this proceeding were taken by the then- Acting General Counsel, this case is currently being litigated by the General Counsel. Therefore, all references are to the General Counsel, except when referring to the Respondent’s argument regarding the validity of the Acting General Counsel’s designation. 2 Subsequently, the Respondents filed a second amended answer and a third amended answer, also asserting additional affirmative de- fenses. In response to the Respondents’ amended answer, the General Counsel filed a request for partial remand for further investigation and processing of the Respondents’ newly asserted affirmative defense. The Charging Party filed an opposition to the General Counsel’s request and the Respondents filed a reply. On June 20, 2013, the Board issued an Order Denying Motion and Remanding, which is reported at 359 NLRB 1181 (2013). Pursuant to the Board’s Order, by letter dated July 9, 2013, the Region requested that the Respondents provide evidence in support of their newly asserted affirmative defense regarding the Union’s affiliation. By letter dated July 17, 2013, the Respondents declined to do so.3 On August 8, 2013, the General Counsel filed a renewed Motion for Summary Judgment. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. At the time of the Board’s June 20, 2013 Order, the composition of the Board included two persons whose appointments to the Board had been challenged as consti- tutionally infirm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Can- ning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Accordingly, the June 20, 2013 Order denying the General Counsel’s motion and remanding the proceeding to the Region is set aside. In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we consider anew the General Counsel’s Motion for Summary Judgment and Request for Partial Remand. We also consider the entire record, including the General Counsel’s renewed Motion for Summary Judgment, the Respondents’ amended answers and affirmative defenses, and the parties’ responses. Ruling on Request for Partial Remand The General Counsel requests that the Board remand the Respondents’ affirmative defense regarding the Un- ion’s affiliation to the Region for further investigation. We deny this request. The Respondents contend that on January 3, 2013, they learned that the Union had affiliated with the Na- tional Union of Healthcare Workers (NUHW). The Re- spondents further maintain that this affiliation created a lack of continuity of representative that excuses their refusals to recognize and bargain with the Union. How- ever, the consolidated complaint alleges, and the Re- spondents admit in their answers, that the Respondents 3 On July 22, 2013, the Respondents filed a motion for reconsidera- tion of the Board’s Order, which was denied as untimely filed by letter dated August 21, 2013. 361 NLRB No. 154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1390 refused to bargain with the Union on October 16, 2012, before the Respondents learned of the affiliation. It is well settled that an employer may not defend an earlier refusal to bargain by relying on subsequent events. Laurel Baye Healthcare of Lake Lanier LLC, 346 NLRB 159, 161 (2005) (“there is ‘no useful purpose served by permitting the employer to defend the proprie- ty of an earlier refusal to bargain by relying on subse- quent events that had nothing to do with the refusal’”), enfd. 209 Fed.Appx. 345 (4th Cir. 2006), quoting NLRB v. Springfield Hospital, 899 F.2d 1305, 1315 (2d Cir. 1990) (denying motion to remand issue of union affilia- tion to the Board, noting that the 1989 affiliation was unrelated to the employer’s refusals to negotiate with the union in 1986 and 1987). Therefore, as the Respondents may not validly raise the Union’s later affiliation with NUHW as a defense to their prior refusal to bargain with the Union on October 16, 2012, we find no reason to remand this issue to the Region for investigation.4 Ruling on Motions for Summary Judgment The Respondents admit their refusals to bargain, but contest the validity of the certifications on the basis of their contentions that (1) the bargaining units were con- stituted pursuant to the Board’s Health Care Rule, 29 C.F.R. Section 103.30, in violation of Section 9(c)(5) of the Act; and (2) they had entered into an “Election Pro- cedure Agreement” (described in their answers as an “oral ‘ad hoc’ agreement”) with the Union that prevented the Respondents from submitting evidence in support of their election objections to the Regional Director, and to which the Board should now defer. The Respondents also assert a number of affirmative defenses based on their arguments that (1) the Board lacked a quorum under NLRB v. Noel Canning, 705 F.3d 490 (D.C. Cir. 2013), affd. in relevant part 134 S.Ct. 2550 (2014); (2) the des- ignation of Lafe E. Solomon as Acting General Counsel was improper; and (3) the appointment of Claude T. Har- rell as Regional Director in Region 10 was invalid. We find no merit in these arguments.5 4 While the affiliation issue is not relevant to the allegations in the consolidated complaint, in a subsequent compliance proceeding, if any, the Respondents may seek to establish that the Union’s affiliation re- lieved them of their obligations to bargain with the Union prospective- ly. We note, however, that the Board has considered this issue in other cases and rejected the assertion that the Union’s affiliation caused a discontinuity of representation. See Hospital of Barstow d/b/a Barstow Community Hospital, 361 NLRB 352, 361 (2014) (“The affiliation has not changed the Union’s leadership, the manner in which it represents its members, or its day-to-day operations. The Union operates as an autonomous entity before and after the affiliation.”); Fallbrook Hospi- tal, 360 NLRB 619, 632 (2014) (same). 5 The Respondents assert that Acting General Counsel Solomon was not validly designated for that position, and therefore lacked the author- All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding.6 Accordingly, we grant the General Counsel’s Motion and renewed Motion for Summary Judgment.7 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times Respondent Bluefield, a limited liability company, has been providing inpatient and out- patient care at its hospital located in Bluefield, West Vir- ginia. At all material times Respondent Greenbrier, a limited liability company, has been providing inpatient ity to prosecute the consolidated complaint. This argument is rejected for the reasons stated in Benjamin H. Realty Corp., 361 NLRB 918 (2014); and Huntington Ingalls, 361 NLRB 690, 691, fn. 8 (2014). The Respondents also argue that the appointment of Claude T. Harrell, Jr. as Regional Director for Region 10 is invalid because it occurred at a time when the Board lacked a quorum, and because he was selected in part by Acting General Counsel Solomon. However, Harrell was appointed as Regional Director for Region 10 on December 22, 2011, prior to the loss of a quorum and, as noted, Acting General Counsel Solomon was validly designated for that position. Accordingly, Harrell had full authority to perform all of the actions he undertook in the underlying representation proceeding, including approving the consent election agreement, issuing the certification of representative, and issuing the consolidated complaint. The Respondents further contend that the certification of representa- tive is invalid because it was issued at a time when the Board lacked a quorum. This argument is rejected for the reasons stated in Durham School Services, 361 NLRB 702, 702–703 (2014). Further, the Re- spondents’ argument that Acting General Counsel Solomon and Re- gional Director Harrell did not have the authority to issue or prosecute the consolidated complaint because the Board lacked a quorum at the time it issued is rejected for the reasons stated in Pallet Cos., 361 NLRB 339, 339 (2014). 6 The elections in the underlying representation proceedings took place pursuant to consent election agreements entered into by the Re- spondents, which provided that “[t]he method of investigation of objec- tions and challenge, including whether to hold a hearing, shall be de- termined by the Regional Director, whose decision shall be final,” and further provided that “[a]ll rulings and determinations made by the Regional Director will be final, with the same force and effect in that case as if issued by the Board.” Therefore, in addition to being pre- cluded from raising any representation issues in this unfair labor prac- tice proceeding, the Respondents waived their right to have the Board review the Regional Director’s actions as part of the representation proceedings. Further, although the Respondents are precluded from asserting in this proceeding that the Board’s Health Care Rule violates the Act or that the Board should defer any election objections to their oral ad hoc agreement with the Union, we observe that the Respond- ent’s deferral argument has been considered and rejected by the Board in related cases. See Fallbrook Hospital, supra, 360 NLRB 619, 632 (adopting judge’s finding that deferral to arbitration is not appropriate); Hospital of Barstow, Inc. d/b/a Barstow Community Hospital, supra, at 352 fn. 3 (same). 7 We find it unnecessary to pass on the Charging Party’s motion for a prompt ruling on the renewed motion for summary judgment. BLUEFIELD REGIONAL MEDICAL CENTER 1391 and outpatient care at its hospital located in Ronceverte, West Virginia. In conducting their operations annually, each Re- spondent derived gross revenues in excess of $250,000 and purchased and received at their respective hospitals goods valued in excess of $5,000 directly from points outside the state of West Virginia. We find that the Respondents are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union, National Nurses Or- ganizing Committee, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certifications Following the representation election held on August 29, 2012, in the Bluefield unit and August 30, 2012, in the Greenbrier unit, the Union was certified on Septem- ber 25, 2012, as the exclusive collective-bargaining rep- resentative of the employees in the following appropriate units: All full-time, regular part-time and per diem Registered Nurses, including those who serve as relief charge nurses, employed by Respondent Bluefield at its facili- ty located at 500 Cherry Street, Bluefield, West Virgin- ia; excluding all other employees, including managers, confidential employees, physicians, technical employ- ees, service and maintenance employees, employees of outside registries and other agencies supplying labor to Respondent Bluefield, and guards and supervisors as defined in the Act. All full-time, regular part-time and per diem Registered Nurses, including those who serve as relief charge nurses, employed by Respondent Greenbrier at its facil- ity located at 202 Maplewood Avenue, Ronceverte, West Virginia; excluding all other employees, includ- ing managers, confidential employees, physicians, technical employees, service and maintenance employ- ees, employees of outside registries and other agencies supplying labor to Respondent Greenbrier, and guards and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain At all material times, Donald Carmody, attorney, has been an agent of the Respondents within the meaning of Section 2(13) of the Act. On October 16 and 26, 2012, by electronic mail trans- mission, on October 17, 2012, in person and in writing, and on November 2, 2012, by letter, the Union requested that the Respondents recognize and bargain with it as the exclusive collective-bargaining representative of the units. Since October 16, 2012, the Respondents have failed and refused to recognize and bargain with the Un- ion as the exclusive collective-bargaining representative of the units. We find that this failure and refusal consti- tutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since October 16, 2012, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of employees in the appropriate units, the Respondents have 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 Respondents have violated Sec- tion 8(a)(5) and (1) of the Act, we shall order them to cease and desist, to recognize and 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 Respondents begin to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER A. The National Labor Relations Board orders that the Respondent, Bluefield Hospital Company, LLC d/b/a Bluefield Regional Medical Center, Bluefield, West Vir- ginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with National Nurses Organizing Committee, 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 exclu- sive collective-bargaining representative of the employ- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1392 ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time and per diem Registered Nurses, including those who serve as relief charge nurses, employed by Respondent Bluefield at its facili- ty located at 500 Cherry Street, Bluefield, West Virgin- ia; excluding all other employees, including managers, confidential employees, physicians, technical employ- ees, service and maintenance employees, employees of outside registries and other agencies supplying labor to Respondent Bluefield, and guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at their facilities in Bluefield, West Virginia, copies of the attached notice marked “Appendix A.”8 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate 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 October 16, 2012. (c) Within 21 days after service by the Region, file with the Regional Director for Region 10 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. ORDER B. The National Labor Relations Board orders that the Respondent, Greenbrier VMC, LLC d/b/a Greenbrier Valley Medical Center, Ronceverte, West Virginia, its officers, agents, successors, and assigns, shall 8 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.” 1. Cease and desist from (a) Failing and refusing to recognize and bargain with National Nurses Organizing Committee, 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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time and per diem Registered Nurses, including those who serve as relief charge nurses, employed by Respondent Greenbrier at its facil- ity located at 202 Maplewood Avenue, Ronceverte, West Virginia; excluding all other employees, includ- ing managers, confidential employees, physicians, technical employees, service and maintenance employ- ees, employees of outside registries and other agencies supplying labor to Respondent Greenbrier, and guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Ronceverte, West Virginia, copies of the attached notice marked “Appendix B.”9 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice 9 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.” BLUEFIELD REGIONAL MEDICAL CENTER 1393 to all current employees and former employees employed by the Respondent at any time since October 16, 2012. (c) Within 21 days after service by the Region, file with the Regional Director for Region 10 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX A 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 National Nurses Organizing Committee, 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 listed above. 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 per diem Registered Nurses, including those who serve as relief charge nurses, employed by Bluefield at its facility located at 500 Cherry Street, Bluefield, West Virginia; excluding all other employees, including managers, confidential employees, physicians, technical employees, service and maintenance employees, employees of outside reg- istries and other agencies supplying labor to Respond- ent Bluefield, and guards and supervisors as defined in the Act. BLUEFIELD HOSPITAL COMPANY, LLC D/B/A/BLUEFIELD REGIONAL MEDICAL CENTER The Board’s decision can be found at www.nlrb.gov/case/10–CA–93042 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. APPENDIX B 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 National Nurses Organizing Committee, 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 listed above. 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 per diem Registered Nurses, including those who serve as relief charge nurses, employed by Greenbrier at its facility located at 202 Maplewood Avenue, Ronceverte, West Virginia; excluding all other employees, including managers, confidential employees, physicians, technical employ- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1394 ees, service and maintenance employees, employees of outside registries and other agencies supplying labor to Respondent Greenbrier, and guards and supervisors as defined in the Act. GREENBRIER VMC, LLC D/B/A/ GREENBRIER VALLEY MEDICAL CENTER The Board’s decision can be found at www.nlrb.gov/case/10–CA–093042 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.