RadNet Management Inc. d/b/a San Fernando Valley Advanced Imaging Center

373 NLRB No. 58 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. RadNet Management Inc. d/b/a San Fernando Valley Advanced Imaging Center and National Union of Healthcare Workers. Case 31–CA–235878 May 10, 2024 DECISION AND ORDER BY MEMBERS KAPLAN, PROUTY, AND WILCOX On October 11, 2023, Administrative Law Judge Ma- ra-Louise Anzalone issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief which the Charging Party joined, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. This case concerns whether the Administrative Law Judge properly ruled upon the General Counsel’s com- plaint, which was reissued after the Respondent allegedly failed to comply with the terms of an informal settlement agreement reached in 2019. 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, find- ings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2 In doing so, we agree with the judge that the Regional Director acted within her authority in reissuing the com- plaint, and that the question of whether the Respondent breached the settlement agreement was properly before the judge. See 29 C.F.R. §101.9(e)(2) (“In the event the 1 In addition to adopting the judge’s finding that the Respondent’s defense of laches fails on the merits, we also reject the defense as un- timely, as it was not originally raised in the Respondent’s answer to the General Counsel’s 2023 complaint. Member Kaplan finds it unneces- sary to pass on this additional basis for rejecting the Respondent’s defense. 2 We have modified the judge’s recommended Order to conform to the violations found, to the Board’s standard remedial language, and in accordance with our decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022). We shall substitute a new notice to conform to the Order as modified. Member Kaplan acknowledges and applies Paragon Systems as Board precedent, although he indicated therein that he disa- greed with the majority's decision to modify the notice-posting lan- guage that the Board adopted in Danbury Ambulance, 369 NLRB No. 68 (2020). Further, unlike his colleagues, Member Kaplan would require the Respondent to compensate Veronica Atwater for her other pecuniary harms only insofar as the losses were directly caused by the unlawful layoff, or indirectly caused by the unlawful layoff where the causal link between the loss and the unfair labor practice is sufficiently clear, con- sistent with his partial dissent in Thryv, Inc., 372 NLRB No. 22 (2022). respondent fails to comply with the terms of an informal settlement agreement, the Regional Director may set the agreement aside and institute further proceedings.”); see also Geodis Logistics, LLC, 372 NLRB No. 128, slip op. at 4 (2023) (finding that, “[i]n the event the respondent fails to comply with the terms of an informal settlement agreement, the Regional Director may set the agreement aside and institute further proceedings” and that, once the Regional Director exercises this authority to reissue the complaint, “[t]he question of whether the Respondent has in fact failed to comply with the Agreement and whether it should in fact be set aside are among the issues to be litigated before the judge and, if proper exceptions are filed, before the Board.”).3 Further, we agree with the judge that the Respondent violated the informal settlement agreement by failing to reinstate employee Veronica Atwater and make her whole for her unlawful layoff. Additionally, we agree with the judge that there is no support for the Respond- ent’s argument that the complaint should be dismissed because it engaged in partial performance of certain obli- gations under the settlement agreement, including the posting of the remedial notice and expungement of rec- ords regarding Atwater’s layoff. As the judge found, the Respondent failed to establish that it, in fact, complied with these aspects of the settlement agreement. Moreo- ver, even assuming the Respondent had fulfilled these obligations, the Respondent has still failed to comply with the essential terms of the agreement by failing to reinstate Atwater and make her whole for her unlawful layoff.4 3 Member Kaplan agrees with the judge and his colleagues that the question of whether the Respondent breached the informal Board set- tlement agreement was properly before the judge. In his view, the plain language of the settlement agreement provided the Regional Director with the authority to revoke the agreement and reissue the complaint. This conclusion is consistent with his dissent in Geodis Logistics, where he found that the judge did not abuse his discretion by relying on the literal terms of the settlement agreement in finding that, under those terms, the regional director's sole recourse in the event of a breach was to reissue the complaint. 372 NLRB No. 128, slip op. at 4 (Member Kaplan, dissenting) (further explaining that parties to a settlement agreement should be “held . . . to the terms to which they had agreed"). In this case, the settlement agreement provides, in relevant part, that “[n]o further action shall be taken in the above captioned cases provid- ed that the Charged Party complies with the terms and conditions of this Settlement Agreement and Notice" (emphasis added). According- ly, under the express terms of the settlement agreement, the General Counsel was permitted to take “further action,” including reissuing the complaint, as a result of the Respondent’s failure to comply with its reinstatement and make whole obligations set forth in the agreement. 4 Member Kaplan does not rely on the judge’s citation to Geodis Logistics for the proposition that the Board has long approved regional directors’ partial revocation of informal settlement agreements. As discussed above, Member Kaplan would look to the literal terms of the settlement agreement to determine whether the parties agreed that the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Respondent does not contest the judge’s finding that, as alleged in the reissued complaint, the Respondent laid off Atwater without providing National Union of Healthcare Workers with notice and an opportunity to bargain over the layoff. Accordingly, we agree with the judge that the Respondent’s layoff of employee Atwater violated Section 8(a)(5) and (1) of the Act. ORDER The National Labor Relations Board orders that the Respondent, RadNet Management Inc. d/b/a San Fernan- do Valley Advanced Imaging Center, Los Angeles, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally laying off any of its unit employees at a time they are represented by National Union of Healthcare Workers (the Union) without first notifying the Union and giving it an opportunity to bargain. (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) Rescind the unlawful layoff of Veronica Atwater that was unilaterally implemented on January 18, 2019. (b) Within 14 days from the date of this Order, offer Veronica Atwater full reinstatement to her former job, or if that position no longer exists, to a substantially equiva- lent position, without prejudice to her seniority or any other rights and privileges previously enjoyed. (c) Make Veronica Atwater whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of her unlawful layoff, in the manner set forth in the remedy section of the judge’s decision. (d) Compensate Veronica Atwater for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar years. (e) File with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Veronica Atwater’s corresponding W-2 forms reflecting the backpay award. (f) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoff of Ve- regional director can partially revoke it. See Geodis Logistics, 372 NLRB No. 128, slip op. at 4 (Member Kaplan, dissenting). ronica Atwater, and within 3 days thereafter, notify her in writing that this has been done and that the layoff will not be used against her in any way. (g) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (h) Within 14 days after service by the Region, post at its facility in Los Angeles, California, copies of the at- tached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by Respondent’s authorized repre- sentative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, the notices shall be distrib- uted electronically, such as by email, posting on an intra- net or an internet site, and/or other electronic means, if Respondent customarily communicates with its employ- ees by such means. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Re- spondent has gone out of business or closed the facility involved in these proceedings, Respondent shall dupli- cate 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 January 18, 2019. (j) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certifi- 5 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” RADNET MGMT. INC. D/B/A SAN FERNANDO VALLEY ADVANCED IMAGING CENTER 3 cation of a responsible official on a form provided by the Region attesting to the steps Respondent has taken to comply. Dated, Washington, D.C. May 10, 2024 ______________________________________ Marvin E. Kaplan, Member ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, 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 violated 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 unilaterally lay off any of you at a time you are represented by National Union of Healthcare Workers (the Union) without first notifying the Union and giving it an opportunity to bargain. 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 rescind the unlawful layoff of Veronica At- water that we unilaterally implemented on January 18, 2019. WE WILL, within 14 days from the date of the Board’s Order, offer Veronica Atwater reinstatement to her for- mer job, or if that position no longer exists, to a substan- tially equivalent position, without prejudice to her senior- ity or any other rights or privileges previously enjoyed. WE WILL make Veronica Atwater whole for any loss of earnings and other benefits resulting from her unlawful layoff, less any net interim earnings, plus interest, and WE WILL also make her whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful layoff, plus interest. WE WILL compensate Veronica Atwater for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Di- rector for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years. WE WILL file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Veronica Atwater’s corresponding W-2 forms reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful layoff of Veronica Atwater, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the layoff will not be used against her in any way. RADNET MANAGEMENT, INC. D/B/A SAN FERNANDO VALLEY ADVANCED MEDICAL IMAGING CENTER The Board’s decision can be found at https://www.nlrb.gov/case/31-CA-235878 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Room 5011, Washington, DC 20570, or by calling (202) 273- 1940. Simone Gancayco, Esq., for the General Counsel. Bryan T. Carmody, Esq. (Carmody & Kaseta PLLC), for the Respondent. Florice Hoffman, Esq. (Law Office of Florice Hoffman), for the Charging Party. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 DECISION STATEMENT OF THE CASE MARA-LOUISE ANZALONE, Administrative Law Judge. This case was submitted to be by stipulation on June 23, 2023, pur- suant to the issuance of a February 10, 2023 complaint by the Regional Director for Region 31 of the National Labor Rela- tions Board in Case 31–CA–235878. The complaint was based on an unfair labor practice charge (captioned above) filed by Charging Party National Union of Healthcare Workers (Charg- ing Party or the Union) against Radnet Management Inc. d/b/a San Fernado Valley Advanced Imaging Center (Respondent). Specifically, it is alleged that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amend- ed, 29 U.S.C. Sec. 151, et. seq. (the Act), by laying off an em- ployee represented by the Union without prior notice to the Union and without affording it an opportunity to bargain with Respondent with respect to this decision and/or the effects of this conduct. As discussed herein, Respondent admits engaging in this conduct but disputes, on procedural grounds, the General Counsel’s authority to prosecute the complaint. I reject Respondent’s procedural arguments and find that it committed the alleged unfair labor practices as alleged. Pursuant to their stipulation, the parties waived a hearing in this matter on the question of whether Respondent engaged in an unfair labor practice as alleged by the complaint. The also stipulated that the precise nature of Respondent’s reinstatement obligation to Atwater and backpay liability, if any, are properly reserved for adjudication in a subsequent compliance proceed- ing. Counsel for the General Counsel (herein the General Counsel) and Respondent filed posthearing briefs, which have been carefully considered. Accordingly, based upon the entire record herein, including the posthearing briefs, I make the fol- lowing FINDINGS OF FACT1 I. JURISDICTION With respect to jurisdiction, the parties stipulated as follows: at all material times, Respondent has been a corporation with an office and place of business in Los Angeles, California, and has been engaged in the operation of administering diagnostic im- aging services. In conducting its operations during the 12- month period ending November 9, 2017, Respondent derived gross revenues in excess of $100,000. During the period of time described above in paragraph 8(b), Respondent purchased and received at its Los Angeles, California facility goods val- ued in excess of $5000 directly from points outside the State of California. Accordingly, I find that, at all material times, Re- spondent has been an employer engaged in commerce within 1 All facts recited herein are derived from the parties’ June 23, 2023 joint stipulation of facts, and additionally from the procedural record in the Ninth Circuit enforcement action in NLRB v. Radnet Management, Inc., et al., Nos. 19–71261 and 19–71447. In that regard, I note that the joint stipulation incorrectly described the Ninth Circuit’s 2020 Mandate in Cases 31–CA–222587 and 31–CA–225390 as 2019 as having oc- curred in 2019. See NLRB v. Radnet Management, Inc., et al., Nos. 19– 71261 and 19–71447, Mandate (9th Cir. Aug. 10, 2020). the meaning of Section 2(2), (6), and (7) of the Act, and has been a health care institution within the meaning of Section 2(14) of the Act. The parties further stipulated that, at all material times, the Union has been a labor organization within the meaning of Section 2(5) of the Act. Accordingly, I find that this dispute affects commerce and that the National Labor Relations Board (the Board) has jurisdiction of this case, pursuant to Section 10(a) of the Act. II. PROCEDURAL AND FACTUAL BACKGROUND A. Discriminatee Veronica Atwater is laid off during Respond- ent’s test of certification before the Board. The Union was certified on March 14, 2018, as the exclusive collective-bargaining representative of a unit of employees appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act (the Unit).2 From March 14, 2018, through approximately April 6, 2023, the Union rep- resented the Unit, which included employee Veronica Atwater (Atwater). On or about January 18, 2019, Respondent laid off Atwater without prior notice to the Union and without affording it an opportunity to bargain of the decision and/or its effects. At the time, Respondent was in the process of testing the validity of the Union’s certification as the Unit’s bargaining representative by refusing to engage in bargaining and the General Counsel’s motion for summary judgment on this matter in was pending before the Board. See San Fernando Valley Interventional Radiology & Imaging Center, 367 NLRB No. 88 (2019). Approximately a month following Atwater’s layoff, the Board determined that, by failing and refusing since July 27, 2018, to recognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the Unit, the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. Id., slip op. at 3. B. Complaint in this case issues and is conditionally settled, based on the outcome of Respondent’s test of certification. Based on the above-captioned filed by the Union, Region 31 issued a complaint on April 19, 2019, alleging that Respondent had violated Sections 8(a)(5) and (1) of the Act by unilaterally laying off Atwater at a time when she had been represented by the Union. While the complaint was pending hearing, the Board and Re- spondent each sought review of the Board’s summary judgment in 367 NLRB No. 88, at the Court of Appeals for the Ninth Circuit. See NLRB v. RadNet Mgmt., 818 Fed. Appx. 663, 666 (9th Cir. 2020). On July 22, 2019, while their respective appli- cations were under consideration by the court, the parties 2 The Unit includes “[a]ll full-time, regular part-time, and per diem Technical employees employed by the Employer at its facility at San Fernando Valley Advanced Imaging Center located at 14860 Roscoe Blvd., Suite 101, Panorama City, CA 91402,” excluding “[a]ll other employees, managers, confidential employees, physicians, service employees, office clericals, and guards and supervisors as defined by the Act, as amended.” RADNET MGMT. INC. D/B/A SAN FERNANDO VALLEY ADVANCED IMAGING CENTER 5 agreed via an informal Board settlement agreement, to resolve the outstanding complaint allegations regarding Atwater’s layoff (Settlement Agreement). By its terms, the Settlement Agreement conditioned Re- spondent’s reinstatement and backpay obligations upon the Court of Appeals’ determination as to Respondent’s certifica- tion, stating, “[i]f, upon the issuance of the mandate by the Ninth Circuit, the Agency prevails before the Ninth Circuit in Cases 19–71261 and 19–71447,” Respondent would offer At- water immediate and full reinstatement to her former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and/or privileges previously enjoyed; and (b) make her whole for backpay within 14 days of notification by the Region 31’s Re- gional Director of the amount owed. Respondent further agreed that its performance under the agreement would “com- mence immediately after final court action.” C. Respondent loses its test of certification before the Ninth Circuit Court of Appeals and fails to perform under the Settlement Agreement. On June 17, 2020, the Court of Appeals granted the Board’s application for enforcement of its decision and denied Re- spondent’s cross-petition. On August 10, 2020, Court of Ap- peals issued its Mandate in Cases 19–71261 and 19–71447, as evidenced by the final docket entry in each case. See NLRB v. RadNet Mgmt., 818 Fed. Appx. at 666. Respondent admits that its “duty to perform under the Settlement Agreement was trig- gered on August 10, 2020, which is the date on which the Court of Appeals issued its Mandate and the Company’s challenge to the election was officially over.” (Respondent’s Post-Hearing Brief (R. Br.) at 8.) It is undisputed that, since August 10, 2020, Respondent has not offered Veronica Atwater reinstate- ment to her former job or to any other position or provided her any backpay. On February 10, 2023, Region 31 issued the instant com- plaint (along with a compliance specification that was subse- quently severed and withdrawn). II. THE REGIONAL DIRECTOR ACTED REASONABLY BY REVOKING THE SETTLEMENT AGREEMENT AND ISSUING THE INSTANT COMPLAINT. “The Board has long held that ‘a settlement agreement may be set aside and unfair labor practices found based on preset- tlement conduct if there has been a failure to comply with the provisions of the settlement agreement or if post-settlement unfair labor practices are committed.”’ Twin City Concrete, 317 NLRB 1313, 1313 (1995) (quoting YMCA of Pikes Peak Region, 291 NLRB 998, 1010 (1988), enfd. 914 F.2d 1442 (10th Cir. 1990), cert. denied 500 U.S. 904 (1991)). Thus, it is well-established that, where a party breaches an agreement settling unfair labor practice charges, that agreement can be set aside, the charges reinstated, a new complaint issued and viola- tions found based on the pre-settlement conduct. See Wallace Corp. v. NLRB, 323 U.S. 248, 254–255 (1944); Kuna Meat Co., 304 NLRB 1005, 1005 fn. 2 (1991), enfd. 966 F.2d 428 (8th Cir. 1992). Such is the case, despite the absence of an en- forcement mechanism in a settlement agreement. See, e.g., NLRB v. Arrow Specialties, Inc., 437 F.2d 522 (8th Cir. 1971); NLRB v. Southeastern Stages, Inc., 423 F.2d 878 (5th Cir. 1970); see also McKenzie-Willamette Regional Medical Center Assoc., 361 NLRB 54, 56 (2014) (lack of separate enforcement mechanism in settlement agreement does not bar its revocation and resumption of unfair labor practice proceedings) (citing Twin City Concrete, 317 NLRB at 1313–1314; Norris Concrete Materials, 282 NLRB 289, 291 (1986)). Where the General Counsel reinstates a complaint alleging a previously settled allegation for compliance, “[t]he question of whether the [r]espondent has in fact failed to comply with the [a]greement and whether it should in fact be set aside are among the issues to be litigated before the judge and, if proper exceptions are filed, before the Board.” Geodis Logistics, LLC, 372 NLRB No. 128, slip op. at 4 (2023). That said, “the Re- gional Director has the authority in the first instance to revoke the settlement if she determines that the Respondent did not comply with it. . .”. Id. Indeed, Section 101.9(e)(2) of the Board’s Statements of Procedure specifically provides that, if a respondent fails to comply with the terms of an informal set- tlement agreement, the Regional Director may set the agree- ment aside and institute further proceedings on the same charge. See Sterling Nursing Home, 316 NLRB 413, 416–417 (1995); Norris Concrete Materials, 282 NLRB at 291. Here, although the record contains no stand-alone document formally vacating and setting aside the Settlement Agreement, the Region’s issuance of its February 10, 2023 complaint cap- tioned in relevant part, “Complaint Based on Breach of Affirm- ative Provisions of a Settlement Agreement,” operated to do so, in accordance with this established procedure.3 III. RESPONDENT VIOLATED THE SETTLEMENT AGREEMENT BY FAILING TO REINSTATE AND MAKE WHOLE DISCRIMINATEE ATWATER. The question of Respondent’s alleged breach properly before me, I find that, by failing to offer reinstate Atwater and make her whole for her unlawful layoff, Respondent failed to comply with the terms of the Settlement Agreement, warranting that it be set aside. Failure to offer a discharged employee reinstate- ment, as agreed to in an informal Board settlement, clearly constitutes a breach of that agreement warranting setting it aside. See, e.g., Sunol Valley Golf Club, 310 NLRB 357, 373 (1993), enfd. sub nom. Ivaldi v. NLRB, 48 F.3d 444 (9th Cir. 1995). The same can be said for a failure of an employer to meet its backpay obligation under a settlement agreement. See, e.g., New Jersey State Opera, 360 NLRB No. 5, slip op. at 2 (2013). By its posthearing brief, Respondent claims that, because the General Counsel agreed by stipulation to litigate remedial as- pects of this complaint in a later compliance proceeding, the government, it has somehow waived the right to litigate the question of whether Respondent violated the Settlement Agreement. To the contrary, this is the very issue before me. 3 In this regard, I reject Respondent claim that it cannot be found to have violated the Settlement Agreement because the stipulated record contains no “previous finding” of its breach. There is no requirement that the Regional Director make such a “finding.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Respondent’s suggestion that, by agreeing to litigate the issues of Atwater’s reinstatement and backpay in a subsequent com- pliance proceeding (per standard Board practice), the General Counsel somehow “cured” Respondent’s uncoerced and un- conditional admission that it failed to reinstate and make her whole, is sophistry. Accordingly, I find that, by admittedly failing to offer Atwa- ter reinstatement and make her whole as required by the Set- tlement Agreement, Respondent breached the Settlement Agreement, justifying its revocation and the issuance of the instant complaint. IV. RESPONDENT UNLAWFULLY LAID OFF ATWATER IN VIOLATION OF SECTION 8(A)(5) AND (1) OF THE ACT. It is settled that an employer violates Section 8(a)(5) and (1) of the Act by unilaterally changing employee wages, hours and other terms and conditions of employment—mandatory sub- jects of bargaining—without first providing their bargaining representative prior notice and opportunity to bargain over those changes. NLRB v. Katz, 369 U.S. 736 (1962). Absent limited circumstances not present here, an economic layoff is a mandatory subject of bargaining. Emcor Group, Inc., 330 NLRB 849, 853 (2000). Therefore, an employer is obligated under Section 8(a)(5) of the Act to provide a union with notice and an opportunity to bargain about both the layoff decision along with the effects of the decision. Taft Coal Sales & Asso- ciates, Inc., 360 NLRB 96, 100 (2014), enfd. 586 Fed. Appx. 525 (11th Cir. 2014); see also NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1090 (7th Cir. 1987) (“[l]ayoffs are not a man- agement prerogative” and until established in a contract, “a company that wants to lay off employees must bargain over the matter with the union.”). The single allegation of the complaint alleges that Respond- ent violated its bargaining obligation by discharging Atwater when she was represented by the Union on January 18, 2019, without giving prior notice to the Union and by failing to bar- gain about her layoff and its effects. Respondent stipulated that it laid off Atwater without affording the Union notice and the opportunity to bargain over its decision to discharge her and the effects of that decision, and additionally stipulated that the layoff constituted a mandatory subject for the purposes of col- lective bargaining. Accordingly, I find that, by laying off Atwater without giv- ing prior notice to the Union and by failing to bargain about her layoff and its effects, Respondent violated Section 8(a)(5) and (1) of the Act. V. RESPONDENT’S DEFENSES Respondent offers several procedural and equitable defenses to the instant complaint: A. Laches Respondent invokes the defense of laches, claiming that the General Counsel waived the right to prosecute this case due by failing to pursue its violation of the Settlement Agreement in a timely manner. The elements of proof required by the equitable defense of laches are (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense. Costello v. United States, 365 U.S. 265, 282 (1961). It is true that, following the issuance of the Court of Ap- peals’ mandate triggering Respondent’s obligations under the Settlement Agreement, the Region did not issue the instant complaint for over 29 months. It is well settled however, that the United States is not subject to the defense of laches in en- forcing its rights. United States v. Summerlin, 310 U.S. 414, 416 (1940); Silverman v. Commodity Futures Trading Commis- sion, 549 F.2d 28, 34 (7th Cir. 1977). This includes the Board, which “is not required to place the consequences of its own delay, even if inordinate, upon wronged employees to the bene- fit of wrongdoing employers.” NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265 (1969) (citing NLRB v. Electric Vacuum Cleaner Co., 315 U.S. 685, 698 (1942); NLRB v. Katz, 369 U.S. at 748 fn.16). Thus, the Board has generally not applied the doctrine of laches to itself or to the General Counsel, finding it inappropri- ate, “[e]ven in instances of unreasonable delay. . .to place the consequences of agency delay on wronged employees. . .”. F.M. Transport, Inc., 302 NLRB 241, 241 (1991); see also Entergy Mississippi, Inc., 361 NLRB 892, 893 fn. 5 (2014), affd. in relevant part, 810 F.3d 287 (5th Cir. 2015); St. Anthony Hosp. Systems, 319 NLRB 46, 51 (1995); Tri-County Roofing, Inc., 311 NLRB 1368, 1384 (1993); Roofing, Metal & Heating Associates, Inc., 304 NLRB 155, 160 (1991). Here, Respondent has not established that the time between its initial failure to comply with its obligations under the Set- tlement Agreement and the Region’s issuance of the instant complaint was unreasonable, whether by comparing it to simi- lar cases or by citing relevant Board law. Nor has Respondent demonstrated that the delay in setting aside the Settlement Agreement was occasioned by a lack of diligence on the part of the Region, as opposed to a good-faith effort to seek Respond- ent’s compliance. See Carnival Carting, Inc. v. NLRB, 455 Fed. Appx. 20, 24 (2d Cir. 2012) (in compliance case, the Board did not delay unnecessarily between 1996 and 2008), enfg. 355 NLRB 297 (2010). Nor has Respondent demonstrat- ed that the Region’s delay in fact prejudiced its ability to de- fend itself in this matter. Accordingly, I find no reason to de- part from the general policy against punishing an already wronged employee for the government’s delay in prosecution. B. Partial Revocation Respondent argues that the complaint should be dismissed in that it improperly seeks to revoke only certain aspects of the Settlement Agreement (i.e., the reinstatement and backpay provisions). Claiming—without any evidence—that it in fact performed other actions required by the Settlement Agreement, such as posting notices and expunging records regarding Atwa- ter’s layoff, Respondent contends that an award of reinstate- ment and backpay would “deprive [Respondent] of its benefits under the [Settlement] Agreement.” (R. Br. at 6.) I disagree. That the General Counsel does not affirmatively rely on Respondent’s non-compliance with these technical as- pects of the Settlement Agreement does not, to my mind, amount to a concession that they were, in fact fulfilled. More- over, even assuming that Respondent partially performed under the Settlement Agreement, Board policy clearly permits the RADNET MGMT. INC. D/B/A SAN FERNANDO VALLEY ADVANCED IMAGING CENTER 7 partial revocation of settlement agreements and has explicitly rejected that argument that such action “deprives [the respond- ent] the benefit if its bargain.” Geodis Logistics, LLC, 372 NLRB No. 128, supra at 4 (citing Nations Rent, Inc., 339 NLRB 830, 831 fn. 6 (2003); Jordan Graphics, Inc., 295 NLRB 1085, 1092 (1989); Golden Age Chairmobile, Inc., 243 NLRB 160, 160 fn. 1 (1979)). Accordingly, I find Respond- ent’s objection to the partial revocation of the Settlement Agreement to lack merit.4 C. Thryv Remedy Respondent, after unsuccessfully challenging the Union’s certification, failed for over 2 years to comply with its unam- biguous contractual obligation to reinstate and make whole an employee it had laid off. From this standpoint, Respondent rather audaciously argues that the government is now unfairly placing it in a “position that is far worse than the position the Company held at the time the Settlement Agreement was con- summated.” (R. Br. at 6.) Respondent’s argument is based on the General Counsel’s amending its prayer for relief to seek relief for all direct or foreseeable pecuniary harms suffered by Atwater. This revised make-whole relief was first recognized by the Board in Thryv, Inc., 372 NLRB No. 22, slip op. at 9 (2022). In that case, the Board (noting that its pronouncements on remedial relief do not implicate a party’s reliance on preexisting law) the Board made new remedy retroactive and applicable to “all pending cases in whatever stage.” Id., slip op. at 21 (citing King Soopers, Inc., 364 NLRB 1153, 1160 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017); Pressroom Cleaners, 361 NLRB 643, 648 (2014); SNE Enterprises, 344 NLRB 673, 673 (2005)). In this case, the General Counsel’s most recent complaint put Re- spondent on notice that the General Counsel sought the new relief and Respondent will have a full opportunity in a subse- quent compliance hearing to litigate its liability under the new standard. Respondent nonetheless argues that it is entitled to an equitable adjustment affording it the benefit of its bargain, rem- edy-wise, whereby it is not liable for Atwater’s pecuniary harms because they were not contemplated by the Settlement Agreement it breached. It is true that, had Respondent complied with its obligations under the Settlement Agreement when they were triggered over two years prior, the newly recognized relief would not have been available to Atwater. However, the Board has specifically indicated that its new remedy should be applied to complaints issued following the revocation of settlement of unfair labor practice allegations originally issued prior to its issuance of the Thryv decision; in other words, the very situation presented here. See Geodis Logistics, 372 NLRB No. 128, supra at 4 (revocation of reinstatement and backpay provisions of pre- Thryv settlement agreement would subject respondent to liabil- ity “for any other direct or foreseeable pecuniary harms in- curred as a result of the unlawful discharge”). Respondent has cited no contrary authority (i.e., supporting the grant of equita- 4 As the parties have agreed, a subsequent compliance proceeding will determine whether Respondent has complied with its various obli- gations under the Settlement Agreement. ble relief to a party because, during time it flouted its legal obligations, the penalty for its malfeasance increased). Accordingly, I reject Respondent’s argument that it should not be subject to the Board’s new standard for make-whole relief. CONCLUSIONS OF LAW 1. Respondent RadNet Management Inc. d/b/a San Fernando Valley Advanced Imaging Center (Respondent) is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and has been a health care institution within the meaning of Section 2(14) of the Act. 2. National Union of Healthcare Workers (the Union) is a labor organization within the meaning of Section 2(5) of the Act with 9(a) status under the Act. 3. Respondent violated Section 8(a)(5) and (1) of the Act by laying off Unit employee Veronica Atwater without first bar- gaining with the Union to an overall good faith impasse over this decision and its effects. 4. The Regional Director acted reasonably in setting aside the informal settlement agreement in Case 31–CA–235878, because Respondent breached the terms of that agreement by failing to offer Veronica Atwater reinstatement and make her whole for her layoff. 5. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act, including posting a notice in the form ap- pended to this decision. Having found that Respondent violated Sections 8(a)(5) and (1) by laying off employee Veronica Atwater without prior notice to the Union and without affording it an opportunity to bargain with Respondent with respect to this conduct and/or its effects, Respondent should be ordered to cease and desist from engaging in this conduct, and, in any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Citing the Union’s April 2023 disclaimer of interest in the Unit, the General Counsel, by its post-hearing brief, withdrew its request that Respondent be ordered to bargain with the Union regarding Atwater’s layoff and its effects. In the absence of a request for alternate remedial action, I do not recommend that Respondent be ordered to bargain with any duly certified or otherwise des- ignated representative of the Unit employees. See Citizens Publishing and Printing Co., 331 NLRB 1622, fn. 2 (2000), enfd. 263 F.3d 224 (2001). Cf. Wells Fargo Armored Service Corp., 290 NLRB 936, fn. 1 (1988). Respondent, having laid off Atwater in violation of Sections 8(a)(5) and (1) of the Act, must offer her reinstatement and make her whole for any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest at the rate pre- scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 NLRB 6 (2010). In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent should also be ordered to compensate Atwater for any other direct or foreseea- ble pecuniary harms incurred as a result of the unlawful dis- charge, including reasonable search-for-work and interim em- ployment expenses, if any, regardless of whether these expens- es exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, com- pounded daily as prescribed in Kentucky River Medical Center, supra. Further, Respondent should be ordered to compensate Atwa- ter for the adverse tax consequences, if any, of receiving a lump-sum backpay award and to file a report with the Regional Director for Region 31 allocating the backpay award to the appropriate calendar year(s). AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). In addition to the backpay allocation report, Respondent shall to file with the Regional Director for Region 31 a copy of Atwater’s corresponding W-2 form(s) reflecting the backpay award. Cascades Containerboard Pack- aging -- Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021). The interest on backpay runs to the date of payment and should be computed at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Ken- tucky River Medical Center, supra. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5 ORDER Respondent RadNet Management Inc. d/b/a San Fernando Valley Advanced Imaging Center, Los Angeles, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain collective- ly with National Union of Healthcare Workers (the Union) concerning rates of pay, wages, hours, and other terms and conditions of employment for employees in the following ap- propriate unit (the Unit): All full-time, regular part-time, and per diem technical em- ployees employed by Respondent at its facility at San Fernan- do Valley Advanced Imaging Center located at 14860 Roscoe Blvd., Suite 101, Panorama City, CA 91402, excluding all other employees, managers, confidential employees, physi- cians, service employees, office clericals, and guards and su- pervisors as defined by the Act. (b) Laying off any of its Unit employees at a time they are represented by the Union without first bargaining with the Un- ion to an overall good-faith impasse over this decision and its effects. 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. (c) Unilaterally implementing changes affecting Unit em- ployees’ wages, hours, or other terms and conditions of em- ployment without providing the Union with prior notice and an opportunity to bargain over those changes. (d) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Offer Veronica Atwater reinstatement to her former job, or if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed. (b) Make Veronica Atwater whole for any loss of wages and benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of his unlawful layoff, in the manner set forth in the remedy section of this decision. (c) Compensate Veronica Atwater for the adverse tax con- sequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the ap- propriate calendar year(s). (d) File with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Veronica Atwater’s corresponding W-2 form(s) reflecting the backpay award. (e) Remove from all files any reference to the discharge of Veronica Atwater and within 3 days thereafter, notify her in writing that this has been done and that it will not be relied on for any future purpose. (f) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its facility in Los Angeles, California, copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by Respondent’s authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed the facility involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees RADNET MGMT. INC. D/B/A SAN FERNANDO VALLEY ADVANCED IMAGING CENTER 9 employed by Respondent at its Los Angeles, California facility since January 18, 2019. (h) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps Respondent has taken to comply. Dated, Washington, D.C. October 11, 2023 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 violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT do anything that interferes with these rights. WE WILL NOT fail and refuse to recognize and bargain collec- tively with National Union of Healthcare Workers (the Union) concerning rates of pay, wages, hours, and other terms and conditions of employment of the employees in the following appropriate unit: All full-time, regular part-time, and per diem Technical em- ployees employed by the Employer at its facility at San Fer- nando Valley Advanced Imaging Center located at 14860 Roscoe Blvd., Suite 101, Panorama City, CA 91402, but ex- cluding all other employees, managers, confidential employ- ees, physicians, service employees, office clericals, and guards and supervisors as defined by the Act. WE WILL NOT lay off any of you at a time you are represented by the Union without first giving notice to the Union and providing it with an opportunity to bargain about the layoff decision and the effects of that decision, as required by law. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Veronica Atwater full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL, within 14 days from the date of the Board’s Order, make Veronica Atwater whole for any loss of earnings and other benefits resulting from her unlawful layoff, less any net interim earnings, plus interest, and WE WILL also make her whole for any other direct or foreseeable pecuniary harms suf- fered as a result of her unlawful layoffs, including reasonable search-for-work and interim employment expenses, plus inter- est. WE WILL compensate Veronica Atwater for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 31, within 21 days of the date the amount of backpay is fixed, ei- ther by agreement or Board order, a report allocating the back- pay awards to the appropriate calendar years. WE WILL file with the Regional Director for Region 31, with- in 21 days of the date the amount of backpay is fixed by agree- ment or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Veronica Atwater’s corresponding W-2 forms reflecting the backpay award. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlawful layoff of Veronica Atwater, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that her layoff will not be used against her in any way. RADNET MANAGEMENT, INC. D/B/A SAN FERNANDO VALLEY ADVANCED MEDICAL IMAGING CENTER The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/ 31-CA-235878 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washing- ton, D.C. 20570, or by calling (202) 273-1940