Fallbrook Hospital Corp., d/b/a Fallbrook Hospital

National Labor Relations Board - Board Decisions

Apr 14, 2014

360 N.L.R.B. 644 (N.L.R.B. 2014)

644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 73
Fallbrook Hospital Corporation d/b/a Fallbrook Hos-
pital and California Nurses Association/National
Nurses Organizing Committee (CNA/NNOC),
AFL–CIO. Cases 21–CA–090211 and 21–CA–
096065
April 14, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On May 16, 2013, Administrative Law Judge Eleanor
Laws issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply
brief. In addition, the Charging Party filed exceptions
and a supporting brief, the Respondent filed an answer-
ing brief, and the Charging Party filed 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,1 and conclusions,2 to

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In her decision, the judge inadvertently stated that the Union re-
quested information to prepare for bargaining over the discharge of
employee Libby Sandwell, when in fact the Union requested infor-
mation concerning Martha Robinson’s discharge. She also inadvertent-
ly stated that employee Rebecca Ojala, who had been a member of the
Union’s bargaining team, was no longer a member of the Respondent’s
bargaining team. These errors do not affect our disposition of this case.
2 We adopt the judge’s finding that deferral to arbitration under Col-
lyer Insulated Wire, 192 NLRB 837 (1971), is not appropriate here,
because the parties have not executed a written contract setting forth an
agreed-upon grievance-arbitration procedure. See generally Arizona
Portland Cement Co., 281 NLRB 304, 304 fn. 2 (1986) (deferral not
appropriate where “there is no contract in existence under which the
parties are mutually bound by an agreed-upon grievance-arbitration
procedure”). In adopting the judge’s finding, Member Johnson relies
on the Federal Arbitration Act’s requirement that agreements to arbi-
trate must be in writing. 9 U.S.C. § 2. We do not rely on the judge’s
statement that the Respondent’s affirmative defense was untimely
raised in its amended answer. See Sheet Metal Workers Local 18—
Wisconsin, 359 NLRB 1095, 1096 (2013) (“Deferral to arbitration is an
affirmative defense that may be raised in the answer or even at the
hearing.”).
In adopting the judge’s 8(a)(5) and (1) findings, we find no merit in
the Respondent’s contention on exception that it had no bargaining
obligation because the underlying certification of representative issued
when the Board lacked a quorum. The Respondent waived its right to
challenge the validity of the certification when it entered into negotia-
tions with the Union. Nursing Center at Vineland, 318 NLRB 901, 904
(1995); Technicolor Government Services v. NLRB, 739 F.2d 323, 326–
amend the remedy,3 and to adopt the recommended Or-
der as modified and set forth in full below.4
AMENDED REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to bargain in good
faith with the Union, the judge recommended, among
other things, a 6-month extension of the certification
year, but declined to grant the Union’s request for reim-

327 (8th Cir. 1984). We also find no merit in the Respondent’s conten-
tion that the Acting General Counsel lacked the authority to prosecute
this case. The Acting General Counsel was properly appointed under
the Federal Vacancies Reform Act, 5 U.S.C. § 3345, which does not
contain the limitation cited by the Respondent, and not pursuant to Sec.
3(d) of the Act. See Muffley v. Massey Energy Co., 547 F.Supp.2d 536,
542–543 (S.D.W.Va. 2008), affd. 570 F.3d 534 (4th Cir. 2009) (up-
holding authorization of 10(j) injunction proceeding by Acting General
Counsel designated pursuant to the Vacancies Act). See Ardit Co., 360
NLRB 74 (2013).
In adopting the judge’s finding that the Respondent unlawfully re-
fused to furnish requested information concerning the discharge of
employee Martha Robinson, we find no merit in the Respondent’s
contention that the Union was attempting to “use an information re-
quest as a discovery device for filed or contemplated unfair labor prac-
tice charges.” In any event, “a potential lawsuit is not a valid reason for
depriving the Union of [relevant] information.” CJC Holdings, Inc.,
315 NLRB 813, 816 (1994), enfd. 97 F.3d 114 (5th Cir. 1996).
Member Johnson agrees with the judge and his colleagues that the
Respondent unlawfully refused to bargain over the terms of an initial
collective-bargaining agreement. However, he does not find that the
Respondent’s request for a full set of proposals from the Union during
bargaining—a position that in other circumstances may serve to speed
bargaining to either agreement or a good-faith impasse and thus serve
the Act’s goals—reflected an unlawful refusal to bargain.
3 On exception, the Union requests that the judge’s remedy be modi-
fied to require the Respondent to read the Board’s remedial notice to
assembled employees during paid working hours. We find that the
Union has not demonstrated that this measure is needed to remedy the
effects of the Respondent’s unfair labor practices. Alstyle Apparel, 351
NLRB 1287, 1288 (2007). We also find that a remedy requiring the
Respondent to reimburse the Union for its litigation expenses is not
warranted, as the defenses raised by the Respondent, although found to
be without merit, were not frivolous. See, e.g., Waterbury Hotel Man-
agement LLC, 333 NLRB 482, 482 fn. 4 (2001), enfd. 314 F.3d 645
(D.C. Cir. 2003).
4 We shall modify the judge’s recommended Order to include the
provisions discussed below in the Amended Remedy and to conform to
the violations found and our standard remedial language. We shall also
substitute a new notice to conform to the recommended Order as modi-
fied.
Although the Respondent excepts “to the entirety” of the judge’s
recommended Order, it does not specifically argue on exception that
the judge’s recommended affirmative bargaining order is an improper
remedy for the violations found. We therefore find it unnecessary to
address whether a specific justification for that remedy is warranted.
SKC Electric, Inc., 350 NLRB 857, 862 fn. 15 (2007); Heritage Con-
tainer, Inc., 334 NLRB 455, 455 fn. 4 (2001). See also Scepter v.
NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002) (finding that “a general-
ized exception to a remedial order is insufficiently specific to preserve
a particular objection for appeal,” and that in the absence of particular
exceptions the Board may issue an affirmative bargaining order without
specifically stating the basis for such).
FALLBROOK HOSPITAL 645
bursement for its negotiation expenses. Having exam-
ined record evidence of the Respondent’s bad-faith bar-
gaining conduct, we find, for the reasons set forth below,
that both a full 1-year extension of the certification year
pursuant to Mar-Jac Poultry, 136 NLRB 785 (1962), and
an award of negotiating expenses are necessary to fully
remedy the detrimental impact the Respondent’s unlaw-
ful conduct has had on the bargaining process.
Extension of the Certification Year
The judge correctly stated that an extension of the cer-
tification year is warranted where, as here, “an employ-
er’s refusal to bargain with a newly certified union dur-
ing part or all of the year immediately following certifi-
cation deprives the union of the opportunity to bargain
during the time of the union’s greatest strength.” Santa
Barbara News-Press, 358 NLRB 1415, 1417 (2012).
The appropriate length for the extension must be deter-
mined by considering “the nature of the violations, the
number, extent, and dates of the collective-bargaining
sessions, the impact of the unfair labor practices on the
bargaining process, and the conduct of the union during
negotiations.” Northwest Graphics, Inc., 342 NLRB
1288, 1289 (2004), enfd. 156 Fed. Appx. 331 (D.C. Cir.
2005). Indeed, “[t]he Board may order ‘a complete re-
newal of a certification year, even in cases where there
has been good-faith bargaining in the prior certification
year.’” HTH Corp., 356 NLRB 1397, 1405 (2011), enfd.
693 F.3d 1051 (9th Cir. 2012) (quoting Glomac Plastics,
Inc., 234 NLRB 1309, 1309 fn. 4 (1978)).
Here, the Union was certified as the exclusive collec-
tive-bargaining representative of the Respondent’s nurses
on May 24, 2012,5 and the parties held their first bargain-
ing session on July 3. As found by the judge, the Re-
spondent engaged in bad-faith bargaining from the out-
set, and this conduct continued until the final bargaining
session on January 8, 2013. Thereafter, the Respondent
refused to respond to any of the Union’s requests for
future bargaining dates. Thus, by its conduct, the Re-
spondent effectively precluded any meaningful bargain-
ing for virtually the entire certification year. In these
circumstances, we find that a full 1-year extension of the
certification year is warranted, beginning when the par-
ties commence good-faith negotiations, rather than the 6-
month period recommended by the judge.6

5 All dates refer to 2012, unless otherwise noted.
6 Member Johnson agrees with the judge that, in the circumstances
here, a 6-month extension of the certification year is appropriate. He
also agrees with the judge that an award of negotiating expenses is not
warranted because the Respondent’s misconduct during this period was
not so “unusually aggravated” as to “have infected the core of [the]
bargaining process” as the misconduct of the respondent in Frontier
Hotel & Casino, 318 NLRB 857 (1998), enf. granted in relevant part
Negotiation Expenses
The judge denied the Union’s request for reimburse-
ment of its negotiation expenses, finding that the Re-
spondent’s conduct was not so egregious as to warrant
this remedy. Contrary to the judge, we find that this re-
imbursement is warranted.
In Frontier Hotel & Casino, 318 NLRB 857, 858
(1995), enfd. in pertinent part sub nom. Unbelievable,
Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997), the Board
set forth the standard for determining whether negotiat-
ing expenses should be awarded. The Board stated:
In most circumstances, [an affirmative bargaining or-
der], accompanied by the usual cease-and-desist order
and the posting of a notice, will suffice to induce a re-
spondent to fulfill its statutory obligations. In cases of
unusually aggravated misconduct, however, where it
may fairly be said that a respondent’s substantial unfair
labor practices have infected the core of a bargaining
process to such an extent that their “effects cannot be
eliminated by the application of traditional remedies,”
NLRB v. Gissel Packing Co., 395 U.S. 575, 614 (1969),
citing NLRB v. Logan Packing Co., 386 F.2d 562, 570
(4th Cir. 1967), an order requiring the respondent to re-
imburse the charging party for negotiation expenses is
warranted both to make the charging party whole for
the resources that were wasted because of the unlawful
conduct, and to restore the economic strength that is
necessary to ensure a return to the status quo ante at the
bargaining table . . . . [T]his approach reflects the direct
causal relationship between the respondent’s actions in
bargaining and the charging party’s losses.
Id. at 859.
As described in detail in the judge’s decision, the rec-
ord shows that the Respondent deliberately acted to pre-
vent any meaningful progress during bargaining sessions
that were held. For example, the Respondent’s bargain-
ing team failed to provide any proposals or counter-
proposals during the first eight bargaining sessions until
it received a full set of proposals from the Union, left the
September 12 bargaining session abruptly and without
explanation, and left the October 11 bargaining session 3
minutes after arriving. In addition, although the Re-
spondent proffered some proposals during the next three
bargaining sessions, it subsequently threatened that it
would not continue bargaining if the Union persisted in
encouraging employees’ use of the Union’s assignment

denied in part sub nom. Unbelievable, Inc. v. NLRB, 118 F.3d 795
(D.C. Cir. 1997), where the Board has awarded negotiating expenses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD646
despite objection (ADO) form.7 At a bargaining session
held on January 8, 2013, the Respondent falsely claimed
that the nurses’ use of the ADO forms caused the parties
to be at impasse, refused to bargain further, and left the
meeting after about 15 minutes. Thereafter, the Re-
spondent reaffirmed its refusal to bargain when it refused
to respond to the Union’s requests for future bargaining
dates.
We find that the Respondent’s misconduct infected the
core of the bargaining process to such an extent that its
effects cannot be eliminated by the mere application of
our traditional remedy of an affirmative bargaining order.
In these circumstances, requiring the Respondent to re-
imburse the Union’s negotiation expenses is also “war-
ranted both to make the [Union] whole for the resources
that were wasted because of the [Respondent’s] unlawful
conduct, and to restore the economic strength that is nec-
essary to ensure a return to the status quo ante at the bar-
gaining table.” Frontier Hotel & Casino, supra at 859.
Such expenses may include, for example, reasonable
salaries, travel expenses, and per diems. See, e.g., J. P.
Stevens & Co., 239 NLRB 738, 773 (1978), remanded on
other grounds 623 F.2d 322 (4th Cir. 1980), cert. denied
449 U.S. 1077 (1981).
Accordingly, we shall amend the judge’s remedy and
modify the recommended Order to require the Respond-
ent to reimburse the Union for the expenses it incurred
for the collective-bargaining negotiations held from July
3, 2012, through the final bargaining session on January
8, 2013.
ORDER
The National Labor Relations Board orders that the
Respondent, Fallbrook Hospital Corporation d/b/a
Fallbrook Hospital, Fallbrook, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union, California Nurses Association/National Nurs-
es Organizing Committee (CNA/NNOC), AFL–CIO, as
the exclusive collective-bargaining representative of the
employees in the bargaining unit.
(b) Refusing to bargain collectively with the Union by
failing and refusing to submit any proposals or counter-
proposals until the Union submits all of its proposals and
by conditioning bargaining on the nurses’ abandoning
the use of ADO forms.
(c) Refusing to bargain collectively with the Union by
failing and refusing to bargain over the terms and condi-

7 The Union had directed the unit employees to use its ADO form to
document any circumstances they believed were unsafe for patients, or
that would put a nurse’s license in jeopardy.
tions of employment of its unit employees, including
discharges and their effects.
(d) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(e) 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) Bargain with the Union as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time, regular part-time, and per diem registered
nurses, including those who serve as relief charge nurs-
es, employed by the Respondent at its facility located at
624 East Elder Street, Fallbrook, California; excluding
all other employees, managers, confidential employees,
physicians, employees of outside registries and other
agencies supplying labor to the Respondent, already
represented employees, guards and supervisors as de-
fined in the Act.
(b) Reimburse the Union for the expenses it incurred
for the collective-bargaining negotiations held from July
3, 2012, through January 8, 2013, as set forth in the
amended remedy.
(c) Bargain with the Union as the exclusive collective-
bargaining representative of the employees in the unit
described above concerning terms and conditions of em-
ployment, including the discharges of Libby Sandwell
and Martha Robinson and the effects of each discharge.
(d) Furnish to the Union in a timely manner the infor-
mation requested by the Union on August 2, 2012.
(e) Within 14 days after service by the Region, post at
its Fallbrook, California facility copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 21,
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

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.”
FALLBROOK HOSPITAL 647
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.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 Re-
spondent at any time since July 3, 2012.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 21, a sworn certi-
fication of a responsible official on a form provided by
the Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the certification of the
Union issued by the Board on May 24, 2012, is extended
for a period of 1 year commencing from the date on
which the Respondent begins to bargain in good faith
with the Union.
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 bargain in good faith
with the Union, California Nurses Association/National
Nurses Organizing Committee (CNA/NNOC), AFL–
CIO, as the exclusive collective-bargaining representa-
tive of our employees in the bargaining unit.
WE WILL NOT refuse to bargain collectively with the
Union by refusing to offer any proposals or counterpro-
posals until the Union provides a complete set of its pro-
posals and by conditioning bargaining on the nurses’
abandoning the use of ADO forms.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to bargain over terms and
conditions of your employment, including discharges and
their effects.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
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 bargain with the Union, as the exclusive col-
lective-bargaining representative of our employees in the
following appropriate unit concerning 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 nurs-
es, employed by us at our facility located at 624 East
Elder Street, Fallbrook, California; excluding all other
employees, managers, confidential employees, physi-
cians, employees of outside registries and other agen-
cies supplying labor to the Respondent, already repre-
sented employees, guards and supervisors as defined in
the Act.
WE WILL reimburse the Union for the expenses it in-
curred for the collective-bargaining negotiations held
from July 3, 2012, through January 8, 2013.
WE WILL bargain with the Union over our unit em-
ployees’ terms and conditions of employment, including
the discharges of Libby Sandwell and Martha Robinson
and the effects of each discharge.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on August 2, 2012.
FALLBROOK HOSPITAL CORPORATION D/B/A
FALLBROOK HOSPITAL
Lisa E. McNeill, Esq., for the General Counsel.
Don T. Carmody, Esq., Carmen M. DiRienzo, Esq., for the
Respondent.
Micah Berul, Esq. and Nicole Daro, Esq., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in San Diego, California, on April 8–10, 2013. The Cali-
fornia Nurses Association/National Nurses Organizing Com-
mittee (CNA/NNOC, CNA, the Union, or the Charging Party)1

1 The transcript repeatedly and erroneously refers to the CNA as the
CAN. It was a battle with auto-correct every time I wrote CNA, and it
is my hope I prevailed on each instance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD648
filed the charge in Case 21–CA–090211 September 26, 2012,
the first amended charge on November 8, 2012, and the second
amended charge on December 14, 2012.2 The Acting General
Counsel issued the complaint on December 21, 2012.
Fallbrook Hospital (the Respondent, Hospital, or Fallbrook)
filed an answer on January 4, 2013, denying all material allega-
tions and asserting affirmative defenses. The Respondent filed
an amended answer on February 8, 2013.
The Charging Party filed the charge in Case 21–CA–096065
on January 9, 2013. The Acting General Counsel consolidated
the cases and issued the consolidated complaint on March 6,
2013. The Respondent filed an answer on March 20, 2013,
denying all material allegations and asserting affirmative de-
fenses. The Respondent filed an amended answer on April 2,
2013, that omitted some previously asserted affirmative defense
and added others.3 The Respondent filed a motion to dismiss
on April 2, 2013, asserting the Board lacks a quorum based on
Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), and the
Acting General Counsel’s appointment was unlawful. I denied
the motion on April 5, 2013.
The complaint alleges that the Respondent violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act) by
failing and refusing to bargain with the Union in good faith
over the terms of a collective-bargaining agreement, failing and
refusing to bargain with the Union over the termination of two
employees, and failing to furnish relevant information to the
Union.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel, the Respondent, and the Charg-
ing Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation operating an acute care
hospital in Fallbrook, California. In the course and conduct of
its business operations, the Respondent annually derives gross
revenues in excess of $250,000 and annually receives and pur-
chases goods, materials, and services valued in excess of $5000
directly from points outside the State of California. It is admit-
ted and I find that the Respondent is, and at all material times
has been, an employer 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. I further find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Fallbrook Hospital is an acute care facility. Community
Health Systems (CHS) is the Hospital’s parent company.
CNA/NNOC was certified to represent the following unit on
May 24, 2012:

2 All dates are in 2012, unless otherwise indicated.
3 At the hearing, the Respondent indicated that one of the omissions
was inadvertent. I therefore granted the Respondent’s request to amend
the answer to include it as affirmative defense no. 9.
All full-time, regular part-time, and per diem registered
nurses, including those who serve as relief charge nurses, em-
ployed by the Respondent at its facility located at 624 East
Elder Street, Fallbrook, California; excluding all other em-
ployees, managers, confidential employees, physicians, em-
ployees of outside registries and other agencies supplying la-
bor to the Respondent, already represented employees, guards
and supervisors as defined in the Act.
At all relevant times the Union has been nationally affiliated
with the AFL–CIO. Stephen Matthews is a labor representative
with the CNA/NNOC. He negotiates collective-bargaining
agreements and represents nurses. (GC Exh. 2.)4
The Hospital has a policy entitled “Event and Government
Reporting” which ensures processes are in place to improve
patient care and safety. Per the policy, employees are instruct-
ed to fill out an on-line event report form, also referred to dur-
ing the hearing as an incident report, if something noteworthy
occurs on their shift. The form lists several examples of what
types of incidents or events should be reported. Employees are
trained on the policy and the event reporting system during new
employee orientation. Nurse Shelly Mueller (Mueller) believed
the incident report was for reporting an event like a slip and
fall, medication error, or a patient leaving against medical ad-
vice. She supposed it could be used to report an unsafe work-
ing condition, but had not been instructed to use the form for
this purpose.
Linda Maxell (Maxwell), a registered nurse, is the risk man-
ager, patient advocate, and facility compliance officer at
Fallbrook Hospital. She reviews every incident report and
investigates each incident with the director of the department
where the incident originated. Maxwell meets weekly with the
chief nursing officer and the director of nursing at the skilled
nursing facility to discuss each incident. Maxwell receives
roughly 10–15 incident reports a week.
If a nurse believes staffing is inadequate, pursuant to Hospi-
tal policy, he or she is to raise this concern with the charge
nurse and then move up the chain of command if the matter is
not resolved. With regard to patient safety, nurses fill out a
form of acuity each night. Nobody outside the Hospital can
resolve issues relating to patient care.
The Union has created so-called “assignment despite objec-
tion” (ADO) forms upon which nurses can document assign-
ments or situations they feel are not safe for the patient or may
compromise the nurse’s license.5 The Union provided the

4 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s exhibit; “GC Exh.” for Acting Gen-
eral Counsel’s exhibit; “CP Exh. for Charging Party’s exhibit; “GC
Br.” for the Acting General Counsel’s brief; “R. Br. for the Respond-
ents’ brief; and “CP Br.” for the Charging Party’s brief. Although I
have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are
based not solely on the evidence specifically cited, but rather are based
on my review and consideration of the entire record.
5 There is another form called “technical despite objection” or
“TDO” which offers a similar protection to the nurse as the ADO but
the focus is on technology as opposed to an assignment. Use of the
TDO form has no bearing on this case.
FALLBROOK HOSPITAL 649
forms to the Respondent’s nurses shortly after the election. A
stack is kept at the Hospital and available for nurses’ use. Mat-
thews and fellow Union Labor Representative Glynis Golden-
Ortiz trained the nurses on how to use the form in June. Before
filling out the ADO form, the nurse must first verbally let her
supervisor know about the issue or concern and give him/her a
chance to address it. Once filled out, the nurse gives a copy of
the form to his/her manager, a copy to the Union’s facility bar-
gaining committee member, and a copy to the union labor rep-
resentative. There is a line on the form designated for the su-
pervisor’s response. (GC Exh. 8.) The Union did not instruct
its members to fill out the ADO form instead of the Hospital’s
form or to fail to follow the Hospital’s internal procedures for
addressing patient safety concerns or incidents. Union mem-
bers are not required to fill out ADO forms and there are no
repercussions for failing to use them.
Maxwell noted one important feature of the Hospital’s event
report form is it cannot be discovered in a medical malpractice
suit or by the public because it is designated as a “safety work
product” designed to encourage improvements in patient safe-
ty.6 She does not believe the ADO form has similar protec-
tions. Maxwell also noted the ADO form lacks certain specific
and pertinent information.
B. Bargaining Meetings and Progress
Pursuant to an agreement entered into prior to the Union’s
certification, the CHS and the Union had tentatively agreed on
some issues including retirement benefits, union security, and
recognition. (GC Exh. 6.) These provisions were pre-
negotiated before the election as to what the parties would
agree to if the nurses selected CNA as their representative.
The Hospital and Union met for the first time on June 13.
The meeting was introductory and took place at the Hospital.
Matthews was present for the Union along with Golden-Ortiz
and bargaining team nurses Mueller, Carol Givens (Givens),7
Rosenda McDowell (McDowell), and Rebecca Ojala. Don
Carmody (Carmody), the Hospital’s attorney, was present for
the Hospital, along with the Hospital’s human resources direc-
tor, Greg Smorzewski (Smorzewski), CHS Human Resources
Director Jan Ellis (Ellis), and Corporate Representative Jim
Carmody.8 Matthews gave the Hospital a preliminary infor-
mation request and the parties discussed dates for bargaining.
On June 25, Union received some of the information it re-
quested from the Hospital.
The first bargaining session took place on July 3 at the Palo
Mesa Resort. For the Union, Matthews and three bargaining
team nurses were present.9 For the Hospital, the same individ-
uals who at the June 13 meeting were present, with the excep-
tion of Jim Carmody. The meeting began with a discussion
about the information requests. The Union then presented its

6 I take notice that the witness was referring to the Patient Safety
and Quality Improvement Act of 2005, 42 U.S.C. ch. 6A, subch. VII,
part C.
7 Givens left Fallbrook Hospital in February 2013, and at the time of
the hearing worked at Meniffe Hospital.
8 Jim Carmody and Don Carmody are not related. Jim Carmody’s
position was not identified.
9 McDowell and Givens missed this session.
initial written proposals, which totaled more than 30.10 (GC
Exh. 3.) Carmody stated the Hospital would not give any pro-
posals until the Union provided all their proposals. Matthews
responded that this was bad-faith bargaining, and Carmody
replied that he had negotiated in this manner for 30 years. In
Matthews’ experience, an employer had never conditioned
bargaining on the Union first presenting all of its proposals.
The Hospital did not submit any proposals.
The parties had another bargaining session on July 17, 2012,
at the same location with most of the same individuals present.
Carmody started off the meeting by stating the Hospital ex-
pected all the Union’s proposals before they would offer any
proposals or counterproposals. According to Matthews, Car-
mody was very loud and adamant that his way was the way it
was going to be. The Union submitted three additional pro-
posals, leaving only its wage proposal left to submit. (GC Exh.
4.) The Hospital did not submit any proposals or counterpro-
posals.
The third bargaining session was July 25 at the same location
with the same individuals present. Carmody again voiced the
Hospital’s refusals to submit proposals until the Union had
submitted all of theirs. Matthews stated he expected the Hospi-
tal to bargain and told Carmody the Union needed proposals
from the Hospital. By this time, the Union had submitted eve-
rything except its wage proposal, and was awaiting a response
to an information request prior to making the wage proposal.
Carmody presented the Union with a change to the heading for
the union security provision to indicate it was between
Fallbrook Hospital and the California Nurses Association. The
Hospital did not submit any new proposals.
The parties also discussed Nurse Libby Sandwell, who the
Union believed was unjustly terminated. The Union demanded
bargaining over her termination, and was awaiting a response
from the Hospital to an information request. Carmody would
not agree to provide the requested information or meet about
Sandwell’s termination.
Martha Robinson is a nurse who served on the Union’s facil-
ity bargaining committee. The members of the facility bargain-
ing committee keep nurses up to date on bargaining efforts.
Robinson was terminated on July 29. Matthews tried to meet
with Smorzewski the morning of July 30, to discuss her termi-
nation, but Smorzewski said Carmody instructed him not to
discuss terminations. When pressed, Smorzewski instructed
Matthews to call Carmody. Matthews called Carmody, who
said the Hospital would not meet about Robinson’s termination,
and they could use the Hospital’s internal grievance system.
At some point during the July meetings, Carmody expressed
that the Hospital could be legally liable in connection with the
ADO forms and said the Hospital was not going to recognize
them. Matthews responded that the Union intended to continue
to use the forms but if the Hospital wanted to make a proposal
about their use, the Union was willing to negotiate.
The fourth bargaining session was on August 2, at the same
place as the previous sessions with the same people present.
Matthews stated Robinson was denied her right to a Weingarten

10 One of the proposals submitted, art. 29, was aimed at making sev-
eral improvements to patient care.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD650
meeting, and he submitted a written request for information
enumerating 12 items he believed would assist the Union in
representing her. (GC Exh. 5.) Specifically, the Union wanted
this information to see if Sandwell was treated differently be-
cause of her union activities and also to determine if there was
an age bias. Carmody said Smorzewski would provide some of
the information in the next couple of days but the Hospital
would not commit to meet about Sandwell. Carmody also gave
the previously-agreed to retirement benefits proposal, which he
drafted, to the Union. The parties signed off on previously-
agreed-to articles regarding recognition, union security, and
retirement benefits. The Hospital did not submit any new pro-
posals or counter-proposals at the meeting.
The Hospital provided information responsive to all but one
of the requests related to Sandwell’s termination. The disputed
request asks for a list of terminations of emergency room nurs-
es for the past 3 years and the reason each was terminated.
Bargaining resumed on August 22 at the same location with
the same individuals. The parties discussed a new position of
clinical informaticist, which involves electronic charting, and
Matthews requested information about it. Matthews said the
Union expected some proposals, and Carmody said the Hospital
expected all of the Union’s proposals before it would respond.
The Hospital did not submit any proposals or counterproposals
at the meeting.
The sixth bargaining session took place on September 12 at
the Fallbrook Community Center. The parties discussed the
new position of clinical informaticist. The Union also request-
ed exit interviews of the nurses who had left the Hospital to
assist in putting together a wage proposal. After caucusing
with the other individuals from the Hospital, Carmody returned
and said they were done for the day and he would send an email
explaining why they were leaving. Matthews did not receive an
email or any other communication explaining why the Hospital
bargaining team members left the meeting.
The parties seventh bargaining session was back at Palo Me-
sa on October 11. Rebecca Ojala, who had been selected as the
clinical informaticist, was present as usual in her role as a
member of the bargaining team. Carmody came in with his
team, and without sitting down, immediately said he would not
bargain because the Union had a member of management pre-
sent. The Union offered to discuss a wage proposal it had pre-
pared, but the members of the Hospital negotiating team re-
fused and walked out. The meeting lasted about 3 minutes.
Matthews subsequently emailed the wage proposal to Carmody.
(GC Exh. 7; Tr. 51.)
The parties reconvened for their eighth bargaining session on
October 18 at a hotel in Temecula with a mediator present.
After the meeting, Matthews received an email from Ellis with
proposals about grievance/arbitration and no-strike/no-lockout.
The Union periodically distributes bargaining updates con-
sisting of a page or two of highlights related to bargaining. A
Fallbrook Hospital bargaining update dated October 19 con-
tained a blurb about improving patient care, and noted the Un-
ion stands by its proposals, including the nurses’ right to protect
their licenses by use of ADO forms. (R. Exh. 2.)
During the time period relevant to the instant complaint,
CHS was also bargaining with the Union at Barstow Hospital.
The Union distributed ADO forms at Barstow Hospital and
used them in the same manner as at Fallbrook Hospital. In an
October 19 bargaining update to the nurses at Barstow Hospi-
tal, the Union reported that it would stand by various proposals,
including one to allow nurses to protect their licenses by use of
the ADO form. (R. Exh. 1.)
On November 1, Nurses McDowell, Mueller, and Givens
submitted an ADO form stating they believed it was unsafe to
monitor telemetry patients outside of their specific units. Giv-
ens filled out the form and gave it to Supervisor Irma Papini.
Nobody filled out an incident report about this issue. Maxwell
saw the completed form for the first time at the hearing and was
very concerned it had not previously been brought to her atten-
tion.
The parties met again with the mediator on November 20
back at Palo Mesa. The Hospital submitted 14 proposals. Dur-
ing the next session, on November 30, the Hospital offered a
proposal regarding leaves of absence, and the Union submitted
10 counterproposals.
In the November 30 Fallbrook Hospital bargaining update,
the Union poses the question of how it can get management to
address the most critical issues and give acceptable counter-
proposals. One answer it provides is to document patient care
issues by filling out ADO forms. The update goes on to note
that the nurses at Barstow Hospital have already won patient
care improvements by using the ADO forms. (R. Exh. 4.)
The December bargaining update distributed to the nurses at
CHS-affiliated hospitals describes the ADO form, and encour-
ages nurses to use them. It states that the professional practice
committee will use them to raise patient care issues that need to
be addressed and the bargaining team will use them at the nego-
tiating table to win important contract provisions. (R. Exh. 3.)
There was a scheduled bargaining session for Barstow
Community Hospital on December 28. About 5 or 6 minutes
into the session, Carmody informed Matthews that he would
not bargain with the Union at Barstow or Fallbrook if the nurs-
es used the ADO forms and they were at impasse both places.
Matthews stated that the Union intended to use the ADO forms,
but the parties were not at impasse and Union was willing to
bargain over the use of the forms or any other issue. Carmody
told Matthews the Hospital would not bargain with the Union
unless they were willing to stop using the forms, stated they
needed mediation, and left the room. Matthews sent Carmody
an email that same day, recounting the events of the earlier
session, and noting the Union’s willingness to negotiate with
the assistance of a mediator. He resent the email on December
31. (GC Exh. 9.)
The January 2013 bargaining update distributed to the nurses
at CHS-affiliated hospitals discusses how filing ADO forms led
to a change in scheduling practices and notes that nurses in
Barstow and Fallbrook have won improvements in equipment
by using ADO forms. (R. Exh. 5.)
The parties had their eleventh and final bargaining session on
January 8, 2013, with a mediator present.11 Carmody was not
present. Don DeMarco, an attorney for the Hospital, negotiated
on its behalf with Ellis also present. Ojala was no longer on the

11 McDowell recalled two mediators were present.
FALLBROOK HOSPITAL 651
bargaining team for the Hospital. James Moy, a labor repre-
sentative for the Union, was also present. DeMarco expressed
that the parties were at impasse because of the Union’s insist-
ence on using the ADO forms. Matthews disputed this and said
they were willing to bargain over the forms. DeMarco said
they were done for the day and left the session. The session
lasted about 15 minutes.
On January 14, 2013, Matthews sent Carmody an email, not-
ing that for the Hospital had been conditioning bargaining on
the Union’s discontinuance of the ADO forms, and inquiring
about future bargaining dates. Carmody responded the same
day, noting that the Union was correct that no future bargaining
dates were scheduled, and informing Matthews he would re-
spond shortly. (GC Exh. 11.) Matthews did not receive a re-
sponse.
Matthews sent Carmody an email on January 16, 2013, in-
quiring about a response to an information request the Union
had made and asking for available bargaining dates. (GC Exh.
12.) Carmody did not reply. Matthews followed up with a
similar request on January 21, and received no response. (GC
Exh. 13.)
During the bargaining sessions, neither the Hospital nor the
Union made any proposals specifically over the use of the ADO
forms.
C. Affiliation with National Union of Healthcare Workers
Michael Lighty works for the CNA/NNOC and its national
affiliate, National Nurses United (NNU). The NNU has rough-
ly 185,000 members and five affiliates, the largest of which is
the CNA/NNOC. Its purpose is to build a national nurses’
movement. The National Union of Healthcare Workers
(NUHW) affiliated with the CNA effective January 1, 2013,
pursuant to a November 30, 2012 agreement. (GC Exh. 1(aa).)
CNA’s board of directors approved the agreement on Novem-
ber 29. Under the agreement the two entities provide support to
each other but each remains autonomous. An integration team,
consisting of Holly Miller from the CNA and Phyllis Willet
from the NUHW, was formed and its work consists of review-
ing accounting methods and reporting requirements.
CNA/NNOC writes a check each month to NUHW to cover
expenses primarily related to an organizing campaign at Kaiser
Permanente. The monthly amounts have been between $1 and
$1.2 million from January through April 2013. The agreement
spells out terms related to the repayment of the loans from
CNA to NUHW.
Since the affiliation, the CNA maintains its same name, ad-
dress, phone number, and website. One of the four women
serving on the council of presidents stepped down in April for
reasons unrelated to the affiliation and was replaced. Aside
from that, the officers of CNA have not changed since the affil-
iation. CNA’s business agents did not change after the affilia-
tion, nor did their duties. The same 35 members of CNA’s
board of directors have remained since the affiliation. There
have been no operational changes to the CNA since the affilia-
tion, and no changes to how CNA processes grievances or arbi-
trates disputes. The affiliation likewise did not change how
CNA negotiates labor contracts and has not resulted in changes
to contract negotiation committees. Membership dues and
initiation fees have remained the same. CNA represents the
same types of employees, primarily registered nurses, before
and after the affiliation. The affiliation has not changed the
number of members the CNA represents. The work of the
stewards has not changed since the affiliation. CNA members
have no rights under NUHW contracts and vice versa. CNA’s
internal voting processes did not change following the affilia-
tion. The affiliation has not impacted the CNA’s retirement
funds. There has been no change to the CNA’s reporting re-
quirements to State or Federal agencies.
III. DECISION
A. Alleged Refusal to Bargain for Initial
Collective-Bargaining Agreement
The complaint, at paragraph 8, asserts that the Respondent
violated Section 8(a)(1) and (5) of the Act by refusing to bar-
gain in good faith to establish a collective-bargaining agree-
ment with the Union.
Section 8(a)(5) and (d) of the Act obligates parties to “confer
in good faith with respect to wages, hours, and other terms and
conditions of employment.” NLRB v. Wooster Div. of Borg-
Warner Corp., 356 U.S. 342, 344 (1958). The good-faith re-
quirement means that a party may not “negotiate” with a closed
mind or decline to negotiate on a mandatory bargaining subject.
“While Congress did not compel agreement between employers
and bargaining representatives, it did require collective bargain-
ing in the hope that agreements would result.” NLRB v. Truitt
Mfg. Co., 351 U.S. 149, 152 (1956). Sincere effort to reach
common ground is of the essence of good-faith bargaining.
NLRB v. Montgomery Ward & Co., 133 F.2d 676, 686 (9th
Cir.1943); NLRB. v. Reed & Prince Mfg. Co., 118 F.2d 874,
885 (1st Cir. 1941), cert. denied 313 U.S. 595 (1941).
The quantity or length of bargaining sessions does not estab-
lish or equate with good-faith bargaining. NLRB v. American
National Insurance Co., 343 U.S. 395, 404 (1952). The Board
will consider the “totality of the conduct” in assessing whether
bargaining was done in good faith. NLRB v. Suffield Academy,
322 F.3d 196 (2d Cir. 2003), enfg. 336 NLRB 659 (2001).
I find the totality of the conduct indicates the Respondent
operated with a closed mind and put up a series of roadblocks
designed to thwart and delay bargaining. From July through
October, over the course of eight bargaining sessions, the Hos-
pital would not submit any new proposals or counter-proposals,
arguing that it was not going to bargain with the Union until it
received all of the Union’s proposals. By the October 11, 2012,
bargaining session, the Union had prepared its wage proposal,
which was the only proposal it had left to submit. Having met
the Respondent’s initial demands, the Union offered to discuss
the proposal. The Hospital negotiating team walked out, how-
ever, asserting Ojala, who the Hospital had recently appointed
to the informaticist position, was now management. Only after
a mediator was engaged did the Hospital come forward with
any new proposals. A little more than a month later, with no
bargaining sessions in the interim, Carmody announced, during
a bargaining session involving Barstow Hospital, that Respond-
ent would not bargain with the Union at Barstow or Fallbrook
Hospitals if the nurses continued to use ADO forms. He de-
clared they were at impasse both places. Thereafter, as detailed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD652
in the statement of facts, the Hospital insisted that it was at
impasse, and ultimately stopped responding to the Union’s
requests to bargain.
I consider the totality of the Respondent’s conduct, noting
the nature of the Respondent’s avoidance tactics changed over
time. To best align with the complaint allegations, I will ana-
lyze the parts in consideration of the whole.
1. Failure to submit proposals or counterproposals
The Acting General Counsel and the Charging Party first as-
sert the Respondent’s refusal to bargain with the Union until it
had submitted all its proposals shows bad faith. The Charging
Party and the Acting General Counsel point to MRA Associates,
Inc., 245 NLRB 676, 677 (1979), for support. There, the Board
affirmed the administrative law judge’s determination that fail-
ure to submit any proposals over the course of three bargaining
sessions was evidence of “basic intransigence” on the employ-
er’s part, designed to undermine the union’s efforts to negotiate
a contract. The Charging Party also notes that pursuant to Bry-
ant & Stratton Business Institute, 321 NLRB 1007, 1042
(1996), enfd. 140 F.3d 169 (2d Cir. 1998), “failure to pursue
proposals or lack of exchange of proposals or counterpro-
posals” is a factor to consider. See also United Technologies,
296 NLRB 571, 572 (1989) (violation where employer refused
to submit counter proposals and conditioned its bargaining over
economic contract issues); Ardley Bus Corp., 357 NLRB 1009,
1012 (2011) (violation where employer demanded union pro-
posals in writing as a bargaining condition); Vanguard Fire &
Supply, 345 NLRB 1016, 1017 (2005), enfd. 468 F.3d 952 (6th
Cir. 2006) (same where submission of bargaining agenda is
precondition to bargaining).
Matthews, McDowell, Givens, and Mueller provided con-
sistent and uncontroverted accounts of the bargaining sessions
between July and October, which are detailed in the statement
of facts. There is no contrary description of the meetings, and I
credit the witness’ corroborated and undisputed testimony
about what occurred. As current employees testifying against
their own pecuniary interests, I find McDowell and Mueller’s
testimony to be particularly reliable. Gold Standard Enterpris-
es, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB
1304 fn. 2 (1961); Gateway Transportation Co., 193 NLRB 47,
48 (1971); Federal Stainless Sink Div. of Unarco Industries,
197 NLRB 489, 491 (1972). With regard to Givens, she left
Fallbrook Hospital voluntarily to pursue another job, and there-
fore has nothing to gain or lose by being truthful. The witness-
es were clear that Carmody adamantly and consistently refused
to bargain over anything until the Union submitted all of its
initial written proposals. Over the course of seven bargaining
sessions, the Respondent obstinately adhered to a fixed position
of unwillingness to bargain, with no room for debate or even
basic discussion. The Respondent submitted no proposals or
counterproposals during these sessions. Only after the October
18 session with the mediator did the Respondent submit its first
proposal.
The Respondent points to NLRB v. Arkansas Rice Growers
Co-Op Assn., 400 F.2d 565, 568 (8th Cir. 1968), for the propo-
sition that failure to make a counterproposal, in and of itself,
does not constitute an unfair labor practice. While this is true,
the court’s point was that the single refusal to offer a counter-
proposal to the union’s proposal regarding dues collection was
not a per se violation. Notably, the court enforced the Board’s
order, stating in relevant part, “Although as the Company sug-
gests, it may not be bound to make counterproposals, neverthe-
less, evidence of its failure to do so may be weighed with all
other circumstances in considering good faith.” Id.
The Respondent also argues that provisions CHS and the Un-
ion negotiated prior to the Union’s certification show good
faith. That there may have been good faith negotiations be-
tween the Hospital’s parent company and the Union at some
point in the past does not impact my findings based on the rec-
ord before me.12
Based on the foregoing, particularly considering the obsti-
nate and pugnacious manner in which the Respondent’s bar-
gaining agents conducted themselves during the sessions along
with other indicia of bad faith discussed below, I find the Re-
spondent’s conduct of steadfastly refusing to submit any pro-
posals or counterproposals violated Section 8(a)(1) and (5) of
the Act as alleged.
2. The ADO forms and patient care
The complaint allegation at paragraph 8(c), that the Re-
spondent has refused to bargain unless unit employees stop
using ADO forms, and the Respondent’s sixth and seventh
affirmative defenses, that it had no duty to bargain over the
delivery of patient care and the Union engaged in bad-faith
bargaining by insisting on such bargaining, are intertwined.
To briefly summarize, the parties exchanged some proposals
in November after engaging a mediator. Things fell apart again
in December, however, when, during a bargaining session at
another hospital, the Respondent declared impasse over the
Union’s use of the ADO forms. The Respondent thereafter
attended one more bargaining session where the Respondent’s
bargaining immediately announced the parties were impasse
because of the Union’s use of the ADO forms.
a. Proposals about ADO forms
The Respondent asserts that the Union insisted on bargaining
over the ADO forms, and because the ADO forms concern
patient care, there was no requirement to bargain. The record is
devoid of any proposals or counterproposals from either party
over the use of ADO forms. There is no evidence that anything
substantive about the ADO forms was discussed, much less
proposed. The only way they touch on the bargaining sessions
is by the Respondent’s refusal to bargain because of them
and/or about them, despite the Union’s willingness to bargain.
Because there is no record evidence that the Union or the Re-
spondent submitted or even discussed any proposals about the
ADO forms, I find the Respondent’s defense on this basis lacks
merit. I will nonetheless address the Respondent’s arguments
grounded in this defense in the event a reviewing authority
disagrees with me.

12 There is no evidence of record about what happened during these
negotiations other than they resulted in agreement on certain provisions
and CHS was not named as a respondent in this case.
FALLBROOK HOSPITAL 653
b. Use of ADO form and bargaining objectives
The Respondent argues the Union was insisting on using the
ADO form to obtain impermissible bargaining objectives. Spe-
cifically, the Respondent asserts it has no duty to negotiate over
patient care and the use of the ADO form was an attempt to
force such negotiations in bad faith.
As noted, the ADO form is not mentioned in any of the pro-
posals or counterproposals the parties exchanged. At the hear-
ing, the Respondent pointed to bargaining updates the Union
sent to its members, which reference proposals relating to the
use of ADO forms. The Union’s communications to its mem-
bers about the bargaining negotiations are not bargaining pro-
posals.13 There is no evidence the bargaining updates were
brought to the bargaining table and it was not established at the
hearing that anyone on the Respondent’s bargaining team re-
ceived or considered them during negotiations. In any event,
what the Union tells its members it will advocate for in bargain-
ing is a far cry from insisting on the same at the bargaining
table. While conduct away from the bargaining table may be
considered in determining whether parties have engaged in
good-faith bargaining, the Board has been “reluctant to find
bad-faith bargaining exclusively on the basis of a party’s mis-
conduct away from the bargaining table.” Litton Systems, 300
NLRB 324, 330 (1990), enfd. 949 F.2d 249 (8th Cir. 1991),
cert. denied 503 U.S. 985 (1992). The Board in Litton rea-
soned:
Typically, away from the table misconduct has been
considered for what light it sheds on conduct at the bar-
gaining table, but without evidence that the party’s con-
duct at the bargaining table itself indicates an intent [not]
to reach agreement it has not been held to provide an inde-
pendent basis to find bad-faith bargaining.
Id. Despite the Respondent’s assertions that the Union was
acting in bad faith, there is no evidence to show that Union’s
conduct at the bargaining table exhibited intent not to reach
agreement.
The Respondent argues that the Union was impermissibly
using the ADO forms as a tool to negotiate over patient care. It
is without question that the Hospital’s core function is patient
care and safety. It does not follow, however, that the Hospital
can simply refuse to engage in any bargaining over issues that

13 It appears that Carmody did not receive at least some of the bar-
gaining updates until they were subpoenaed in connection with this
case. (Tr. 172.) The Respondent also points out that art. 29 in the
proposals the Union submitted back in July relates to patient care, as
Givens acknowledged. This was never asserted as a reason not to bar-
gain with the hospital anywhere close to when the proposal was made.
As the Charging Party points out, there was no evidence presented to
show anyone at the bargaining table based the decision not to bargain
on the assertion that the “Union’s actual proposals encroached into
areas concerning its entrepreneurial scope of decision making.” (CP
Br. 17.) Nonetheless, as will be discussed below, it was not a valid
reason to simply quit bargaining.
The Respondent’s attempts to discredit the bargaining team nurses’
testimony that the ADOs were not part of the bargaining team’s strate-
gy are unconvincing. The nurses did not draft the bargaining reports
that labeled the Union’s use of the ADO forms as “proposals.”
touch on patient care. As the Board has noted, “[i]n the health
care field, patient welfare and working conditions are often
inextricably intertwined.” Valley Hospital Medical Center, 351
NLRB 1250, 1252 (2007).
The Respondent cites to First National Maintenance Corp. v.
NLRB, 452 U.S. 666 (1981), for support. The Supreme Court
explicitly limited its holding, however, to whether an employer,
under its duty to bargain in good faith, must negotiate with the
union over its decision to close a part of its business. Id. at 667,
687. The Respondent also cites to NLRB v. Longy School of
Music, 759 F.Supp.2d 153 (2011), which involved a request for
preliminary injunctive relief in a case involving partial closure
and merger of a private music school. Even if the Board was
bound by this decision, it is distinguishable, as the Court’s find-
ing that there was no duty to bargain was based on its determi-
nation that the employer’s actions involved a change in the
scope and direction of the enterprise under First National
Maintenance. See also Electrical Workers v. NLRB, 563 F.3d
418 (9th Cir. 2009) (merger and decision to integrate two com-
panies).14
Nothing about the scope or direction of the Respondent’s
business changed. It operated an acute care facility before bar-
gaining began and after it stalled. It had the same obligation to
deliver patient care and employed the same event reporting
system for monitoring this obligation. The Respondent cites to
the nurses’ use of the ADO form rather than the Hospital’s
event reporting system to report their concern about patient
safety on November 1 as evidence that the nurses no longer
believed they were obligated to use the Hospital’s system. This
does not establish that the Union was attempting to bypass the
Hospital’s reporting procedures.15 In fact, Matthews’ uncon-
troverted testimony is that the Union never instructed nurses to
bypass the Hospital’s procedures or required them to use the
ADO form. Even assuming the Union utilized the ADO forms
as part of its bargaining strategy, I find First National Mainte-
nance and its progeny are not on point.
The Respondent makes various arguments about the rogue
and the sloppy nature of the ADO form and how the Union
handles them, as well the potential perils of their use. These
arguments miss the point. First, and most fundamentally, there
is no evidence that the Union ever insisted that the Respondent
recognize the form, as alleged. (R. Br. 2.) The Union contin-
ued to support its members’ use of the form, but had no control
over whether any supervisors or managers at the Hospital
would sign off on or accept the ADO forms. When the Union
offered to bargain over the matter following the Respondent’s
assertions of impasse, the Respondent declined to put its belief

14 In each of these cases the employer was required to engage in ef-
fects bargaining. The Respondent also cites to a few California state
court cases that are not binding on the Board.
15 I find this particularly true in light of the fact that the safety issue
raised was not an event in line with the long list of examples the Hospi-
tal’s policy provides. I also note that management was aware of the
issue by virtue of the forms of acuity the nurses fill out nightly for
patient safety. (Tr. 351.) In any event, if the nurses failure to abide by
the Hospital’s requirement to use its reporting system, action related to
their disobedience, as opposed to a refusal to bargain with the Union
over anything, would seem more appropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD654
that the Union was engaged in bad-faith bargaining by insisting
on perpetual use of the ADO form, with all its inherent flaws,
to the test. Any assertions that the Union could have offered
nothing through collective bargaining are speculation. The
Respondent did not claim to know what proposals the Union
would have made regarding the forms, or what alternative solu-
tions the give-and-take of bargaining might have generated.
See Reisman Bros., Inc., 165 NLRB 390, 393 (1967).
Moreover, these arguments logically would forbid employ-
ees from making any written complaints about working condi-
tions that may touch on patient care outside of the Hospital’s
event reporting system or chain of command. The Board has
held, however, even in a hospital setting, that “an employer
may not interfere with an employee’s right to engage in Section
7 activity by requiring that the employee take all work-related
concerns through a specific internal process.” Valley Hospital,
supra.
Finally, as the Acting General Counsel points out, this case
does not turn on whether the use of the ADO form is a manda-
tory or permission subject of bargaining. Respondent’s unwill-
ingness to discuss the matter with the Union either constitutes a
refusal to bargain over a mandatory subject or insistence on a
permissive subject of bargaining, both of which violate the Act
under NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S.
342, 344, 347–349 (1958); see also Smurfit-Stone Container
Enterprises, 357 NLRB 1732, 1735–1736 (2011).
For all the above reasons, I find the Respondent’s defenses
concerning the use of the ADO form and the Union’s insistence
on bargaining over patient care lack merit.
c. ADO forms as protected concerted activity
The parties advance arguments about the nurses’ use of ADO
forms to engage in protected concerted activity. The complaint
and the answer are silent on the matter, and without the issue
squarely before me in a factual context that was litigated, I
cannot decide it. Without support, the Charging Party states the
forms are often used to object to assignments that violate state-
mandated ratios. (CP Br. 7.) The Respondent asserts that the
forms may not be used for protected concerted activity based
on the recognized special characteristics of a hospital setting.
The form could potentially be filled out for a variety of reasons
by an individual or group. Without an allegation before that a
specific use of the form was protected concerted activity, I am
constrained from ruling.16
d. Impasse
The Respondent asserts that the Union insisted to impasse on
the use of the ADO form, thereby obviating its duty to bar-
gain.17 (R. Br. 14.) This contention is absurd and I will not
belabor it with a lengthy analysis. The evidence plainly shows

16 The complaint allegations in another pending case the Charging
Party cites to in its brief are the type of allegations that would appropri-
ately lead to a ruling on the issue. (CP Br. 10–11.)
17 I note that impasse was not raised as an affirmative defense, and
may be considered waived. M & C Vending Co., 278 NLRB 320, 325
(1986). Notably, the Charging Party did not present argument about
this defense in its brief. I address it briefly in the event it may be con-
sidered as part of the Respondent’s seventh affirmative defense.
that the Union continually offered to bargain about the pro-
posals the parties had submitted, as well as the ADO form,
when the Respondent attempted to use it as an excuse not to
bargain. The Respondent points to portions of an email Mat-
thews sent and resent following Carmody’s abrupt departure
from the December 28 bargaining session at Barstow Hospital.
The email clearly states Matthews’ position that the Union is
not at impasse, and conveys that if the Hospital refuses to nego-
tiation in good faith, it will file a charge that its failure to do so
is bad-faith bargaining.18 (GC Exh. 9.) For the Respondent to
state this shows the Union is declaring impasse on all bargain-
ing issues while contending the Hospital is attempting in good
faith to reach a bargaining agreement is truly confounding.
Because there is no evidence the Union ever insisted on im-
passe, I find this allegation has no merit.19
B. Alleged Refusal to Bargain over Terminations
The complaint, at paragraph 9, alleges the Respondent vio-
lated the Act by refusing to bargain over the terminations of
unit employees Martha Robinson and Libby Sandwell.
An employer has an obligation to bargain with its employ-
ees’ bargaining representative over terms and conditions of
work. Termination of employment is unquestionably a manda-
tory subject of bargaining. See N. K. Parker Transport, Inc.,
332 NLRB 547, 551 (2000). This is true even if the parties
have not yet negotiated to agreement at that time of the termi-
nations. Ryder Distribution Resources, 302 NLRB 76, 90
(1991).
It is uncontested that the Respondent refused to meet to dis-
cuss the terminations of either Robinson or Sandwell.
The Respondent cites to Alan Ritchey to support its position
that there was no duty to bargain, but clearly misconstrues the
decision. Alan Ritchey concerns unilateral change allegations,
absent here. The issue in Alan Ritchey was “whether an em-
ployer whose employees are represented by a Union must bar-
gain with the Union before imposing discretionary discipline on
a unit employee.” Id. at 1 (emphasis in original). It concluded
that “after the employer has decided (with or without an inves-
tigatory interview) to impose certain types of discipline, it must
provide the Union with notice and an opportunity to bargain
over the discretionary aspects of its decision before proceeding
to implement the decision.” Id. at 10 (emphasis in original). In
the instant case, the terminations had been decided and imple-
mented. The Union’s demands to bargain were post discipline.
Thus even if the Board had decided to give Alan Ritchey, retro-
active application, it would not govern. The question before
me is whether the Respondent had a duty to bargain over the
terminations and their effects after they had already been im-

18 The Respondent contends that I should discredit the reference in
the email to its “erroneous claim of impasse.” As there is no evidence
to support this contention, I do not.
19 To the extent a reviewing authority disagrees with me, I find the
Acting General Counsel presented the correct legal framework and
analysis, and that the Respondent did not meet its burden to prove
impasse based on a single issue. (GC Br. 25–27.) See also Sacramento
Union, 291 NLRB 552, 554 (1988), enfd. 888 F.2d 1394 (9th Cir.
1989). King Radio Corp., 172 NLRB 1051, 1066–1067 (1968).
FALLBROOK HOSPITAL 655
plemented.20 The answer is yes. As the Acting General Coun-
sel points out, the Union could have bargained over things like
severance packages, neutral recommendation letters, or benefits
payouts. (GC Br. 20–21.) Accordingly, I find the Respondent
violated the Act as alleged by refusing to bargain over the ter-
minations.
C. Alleged Failure to Provide Information
Paragraph 10 of the complaint alleges that the Respondent
violated Section 8(a)(1) and (5) of the Act by failing to respond
to the Union’s request for a list of the registered nurses (RNs)
in the emergency room that have been terminated within the
last 3 years and the reasons for the terminations.
As part of the obligation to bargain in good faith, both sides
must furnish relevant information upon request. NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967); Detroit Edison Co. v.
NLRB, 440 U.S. 301, 303 (1979). It is well settled that an em-
ployer must provide information relevant to a union’s decision
to file or process grievances. See Beth Abraham Health Ser-
vices, 332 NLRB 1234 (2000); Ohio Power Co., 216 NLRB
987, 991 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). If the
information sought relates to the processing of a grievance (or
potential grievance), the legal test is whether the information is
relevant to the grievance and the determination of relevancy is
made based on a liberal, discovery type of standard. Acme, 385
U.S. at 437; Knappton Maritime Corp., 292 NLRB 236 (1988).
In determining possible relevance, the Board does not pass
upon the merits, and the labor organization is not required to
demonstrate that the information is accurate, not hearsay, or
even, ultimately reliable. Postal Service, 337 NLRB 820, 822
(2002). Like a flat refusal to bargain, “[t]he refusal of an em-
ployer to provide a bargaining agent with information relevant
to the union’s task of representing its constituency is a per se
violation of the Act” without regard to the employer’s subjec-
tive good or bad faith. Brooklyn Union Gas Co., 220 NLRB
189, 191 (1975); Procter & Gamble Mfg. Co., 237 NLRB 747,
751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979).
Information concerning employees in the bargaining unit and
their terms and conditions of employment, is deemed “so in-
trinsic to the core of the employer-employee relationship” as to
be presumptively relevant. Disneyland Park, 350 NLRB 1256,
1257 (2007); Sands Hotel & Casino, 324 NLRB 1101, 1109
(1997). Presumptively relevant information must be furnished
on request to employees’ collective-bargaining representatives
unless the employer establishes legitimate affirmative defenses
to the production of the information. Metta Electric, 349
NLRB 1088 (2007); Postal Service, 332 NLRB 635 (2000).
However, when the requested information does not concern
subjects directly pertaining to the bargaining unit, such material
is not presumptively relevant, and the burden is upon the labor
organization to demonstrate the relevance of the material
sought. Disneyland Park, 350 NLRB at 1257; Richmond
Health Care, 332 NLRB 1304, 1305 fn. 1 (2000).

20 The Charging Party argues that there was a duty to bargain before
the nurses’ terminations, but the complaint does not allege this or any
other unilateral change.
The information the Union requested, at least with regard to
terminations that occurred after the Union was certified, con-
cerns bargaining-unit members and is therefore presumptively
relevant. Any nurses who were terminated prior to the Union’s
certification were obviously not part of the bargaining unit.
The Respondent asserts that because the information requested
also included termination of nurses prior to the Union’s certifi-
cation, the Union must prove its relevance.
There is no question that nurses held the same position be-
fore and after the Union’s certification. The court in Press
Democrat Pub. Co. v. NLRB, 629 F.2d 1320, 1326 (1980), en-
forcing the Board’s order in relevant part, held that relevance is
established where “nearly identical work is being performed by
unit and nonunit personnel.” Here, the work was identical, not
nearly identical. Moreover, the information was sought to as-
sist the Union in representing a unit employee following her
termination. Information regarding nurses terminated prior to
the Union’s certification is clearly a subject that pertains to the
bargaining unit’s obligation to represent its members, regard-
less of when the Union was certified. See North Star Steel Co.,
347 NLRB 1364, 1368 (2006); Public Service Co. of New Mex-
ico v. NLRB, 692 F.3d 1068 (10th Cir. 2012), enfg. 356 NLRB
1275 (2011).
The Respondent offered no evidence at hearing as to why it
failed to supply the requested information.21 The Respondent
attempts to shield itself by asserting it provided information
responsive to 11 of the 12 enumerated requests in Matthews’
written request for information. (R. Br. 21.) However, absent
an explanation about the information it did not provide, this is
not a defense. The Respondent also argues that the information
is confidential, and cites to East Tennessee Baptist Hospital v.
NLRB, 6 F.3d 1139, 1143–1144, (6th Cir. 1993), to argue it did
not need to provide it. The Respondent belatedly raised its
confidentiality defense for the first time in its posthearing brief,
it was not litigated, and unsurprisingly neither the Charging
Party nor the Acting General Counsel addressed it in their
briefs. Thus, Respondent is precluded from relying on the al-
leged confidentiality concern.22 See NLRB v. Pfizer, Inc., 763

21 In its brief, the Respondent states that the parties discussed, off
the record, the fact that Smorzewski had supplied Matthews by email in
August 2012, with information concerning nurses terminated from
Fallbrook Hospital in the last 2 years, and relies on this to argue com-
pliance. (R. Br. 21–22.) Despite the fact that Smorszewski was present
throughout the hearing, the Respondent offered no evidence to support
its assertion. On May 7, 2013, the Charging Party filed a motion to
strike this portion of the brief, which I hereby enter into the record as
ALJ Exh. 1. As I had already considered this section of the brief, and
decided to give it the evidentiary weight it is due, which is none, I did
not grant the motion. The Respondent’s argument that providing the
information would be unduly burdensome is premised on this argu-
ment, and I reject it accordingly.
22 Confidentiality claims must be timely raised so as to notify the
Union of any confidentiality concern and to bargain for an accommoda-
tion. West Penn Co., 339 NLRB 585 (2003); Detroit Newspaper Agen-
cy, 317 NLRB 1071, 1072 (1995). Aside from the procedural error of
failing to raise this defense on time, the undue delay deprived the Un-
ion of the opportunity to bargain for accommodation, assuming the
information requested was confidential.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD656
F.2d 887, 890–891 (7th Cir. 1985); Anthony Motor Co., 314
NRLB 443, 451 (1994).
Based on the foregoing, I find the Respondent violated the
Act as alleged by refusing to provide the information the Union
requested.
D. The Respondent’s Affirmative Defenses
The Respondent asserted a number of affirmative defenses
which are addressed in turn below.
1. First affirmative defense: The Board’s Health Care
Rule violates Section 9(c) of the Act
The Respondent argues that the bargaining unit certified on
May 24, 2012, is invalid and unenforceable because it was
constituted pursuant to the Board’s Health Care Rule in viola-
tion of Section 9(c)(5) of the Act. The time to challenge the
certification was during the representation case. The Respond-
ent entered into the consent election agreement, and did not file
objections to the election.
The Charging Party filed a motion in limine requesting that I
preclude admission of evidence on the issue. (GC Exh. 1(aa).)
I denied the motion, though the Respondent did not assert in its
answer that it had new evidence to present. (GC Exh. 1(ah).)
All representation issues, including the challenge to the unit
based on the purported unlawfulness of the Board’s Health
Care Rule, should have been raised and litigated in the prior
representation proceeding. Moreover, the rule’s validity is not
at issue in this case because there is no reason to believe the
unit the Board certified would be inappropriate notwithstanding
the Health Care Rule. See San Miguel Hospital Corp., v. NLRB
697 F.3d 1181 (D.C. Cir. 2012). Finally, even assuming the
Respondent’s argument has merit, I am bound by the Board’s
regulations.
2. Second affirmative defense: oral ad hoc agreement
to defer to arbitration
The Respondent argues that pursuant to an ad hoc oral
agreement, the complaint allegations are subject to the exclu-
sive jurisdiction of an arbitrator. At the hearing, I ruled that I
would not consider evidence regarding the oral agreement to
arbitrate. The rationale for my ruling was stated on the record
and I incorporate it into this decision with the following elabo-
ration.
The Board has found deferral appropriate in instances where:
(1) the dispute arose within the confines of a long and produc-
tive bargaining relationship; (2) there is no claim of employer
animosity to the employees’ exercise of protected statutory
rights; (3) the CBA’s arbitration provision envisions a broad
range of disputes; (4) the arbitration clause clearly encompasses
the dispute at issue; (5) the employer indicates a willingness to
utilize arbitration to resolve the dispute; and (6) the dispute is
eminently well suited to such resolution. Collyer Insulated
Wire Co., 192 NLRB 837 (1971); United Technologies Corp.,
268 NLRB 557, 558 (1984).
There has never been a collective-bargaining agreement be-
tween the parties in the instant case, much less a long and pro-
ductive bargaining relationship. As there is no collective-
bargaining agreement, it follows there is no arbitration clause.
Instead, there is an alleged oral ad hoc agreement that was first
raised as an affirmative defense to the amended complaint.
This alone renders deferral to arbitration inappropriate. Decid-
ing the merits of this defense would require a “mini trial” to
determine whether there was an ad hoc oral agreement and, if
so, what its terms were. Such a determination, which would
depend on parties’ recollections of what precise words were
uttered to make the agreement and establish its parameters,
presents significant problems. If the arbitrability issue was
severed, adjudication of the complaint would be delayed while
awaiting a decision on whether there was a binding oral arbitra-
tion agreement. If the arbitrability issue was not severed, the
parties would potentially expend unnecessary resources, some
of them the public’s. These problems underscore why the
Board has not extended the Collyer line of cases to agreements
such as the oral ad hoc oral agreement the Respondent attempts
to place at issue here. Whether or not the employer has indicat-
ed a willingness to arbitrate the dispute, I find the dispute is
eminently ill-suited to resolution through arbitration.
3. Third, fourth, and fifth affirmative defenses:
lack of quorum and invalid appointments
The fourth affirmative defenses argue that the Board lacked a
quorum when the certification was issued, and it is therefore it
is invalid. The fifth affirmative defense asserts the present
complaint is invalid for the same reason. The sixth affirmative
defense challenges the Board’s authority to appoint the Acting
General Counsel based, in part, on lack of a quorum. These
arguments derive from the D.C. Circuit’s decision in Noel Can-
ning, supra, and the Board has rejected them. See Belgrove
Post Acute Care Center, 359 NLRB 633, fn. 1 (2013). Any
arguments regarding the legal integrity of Board precedent are
properly addressed to the Board.
The sixth affirmative defense also avers that the Acting Gen-
eral Counsel is acting beyond his authority based on the Federal
Vacancies Reform Act. For the reasons set forth in my April
15, 2013 order denying the Respondent’s motion to dismiss, I
find this argument lacks merit.
4. Sixth and seventh affirmative defenses:
bargaining over patient care
The Respondent’s sixth and seventh affirmative defenses are
that it had no duty to bargain over the delivery of patient care,
and the Union engaged in bad-faith bargaining by insisting on
such bargaining. These defenses are intertwined with the duty
to bargain argument and are discussed in context above.
5. Eighth affirmative defense: remedies requested
are improper
The Respondent asserts in its eighth affirmative defense that
the remedies requested in the complaint are improper. Specifi-
cally, the Respondent argues that an order for the Hospital to
meet with the Union concerning the terminations of Robinson
and Sandwell “would be tantamount to ordering the Hospital to
accept the Union’s proposals on “Discharge and Discipline”
and “Grievance Procedure” in violation of Section 8(d) of the
Act. This argument, plainly based on the misapprehension that
the complaint alleges unlawful unilateral change, fails for the
reasons set forth in my discussion about the duty to bargain
about the terminations.
FALLBROOK HOSPITAL 657
6. Ninth affirmative defense: discontinuity of representation
The Respondent’s ninth affirmative defense asserts that sub-
sequent to the election, the Charging Party affiliated with an-
other organization, and as a consequence there is a lack of con-
tinuity of representation.
The affiliation occurred effective January, 1, 2013. Accord-
ingly, this argument has no bearing on complaint allegations
occurring prior to that date.
As the party asserting lack of continuity of representation,
the Respondent has the burden of proof. Sullivan Bros. Print-
ers, 317 NLRB 561, 562 (1995). In the context of an affilia-
tion, the Respondent must “demonstrate that the affiliation
resulted in changes that were sufficiently dramatic to alter the
identity of the association, and, thus, the substitution of an en-
tirely different union as the employees’ representative.” CPS
Chemical Co., 324 NLRB 1018, 1020 (1997); see also May
Department Stores Co., 289 NLRB 661, 665 (1988), enfd. 897
F.2d 221 (7th Cir. 1990); Raymond F. Kravis Center for the
Performing Arts, 351 NLRB 143, 145–147 (2007), enfd. 550
F.3d 1183 (D.C. Cir. 2008). In making this assessment, the
Board looks at the totality of the circumstances. Mike Basil
Chevrolet, 331 NLRB 1044 (2000). Relevant factors include:
[C]ontinued leadership responsibilities by the existing un-
ion officials; the perpetuation of membership rights and
duties, such as eligibility for membership, qualification to
hold office, oversight of executive council activity, the
dues/fees structure, authority to change provisions in the
governing documents, the frequency of membership meet-
ings, the continuation of the manner in which contract ne-
gotiations, administration, and grievance processing are
effectuated; and the preservation of the certified union’s
physical facilities, books, and assets.
Western Commercial Transport, 288 NLRB 214, 217 (1988).
The Supreme Court recognized in NLRB v. Food & Commer-
cial Workers Local 1182 (Seattle-First National Bank), 475
U.S. 192, 199 fn. 5 (1986), that “increased financial support
and bargaining power” are “ordinary, valid reasons for affilia-
tions and mergers.” See also Sullivan Bros. Printers, 317
NLRB at 562–563.
As set forth fully in the statement of facts, the affiliation has
changed virtually nothing with regard to the Union’s leader-
ship, 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.
The only factor the Respondent points to in support of its
discontinuity argument is the change in the Union’s books
and/or assets based on its financial support to the NUHW in
furtherance of its efforts to organize roughly 45,000 Kaiser
Permanente nurses. The evidence shows that the CNA has
loaned the NUHW between $1 and $1.2 million a month be-
tween January and April 2013, to support its campaign to or-
ganize the nurses at Kaiser Permanente.23

23 The Respondent requests an adverse inference based on the Un-
ion’s failure to produce loan documents requested pursuant to subpoe-
na. The Union represented that there are not any loan documents. The
Respondent argues this strains credibility. Considering that the affilia-
The Respondent asserts that “depletion of the CNA re-
sources” to fund the Kaiser campaign changes the character of
the Union. Though aware of the money the CNA transferred to
the NUHW from Lighty’s testimony the previous day, after its
last witness testified the following day, the Respondent sought
to call two additional witnesses to refute Lighty’s testimony. I
denied the request on timeliness grounds and invited the Re-
spondent to make an offer of proof. The offer of proof was that
the witness testimony would contradict Lighty’s testimony that
it is in the interest of the CNA to fund the election campaign of
the NUHW in the Kaiser Permanente election matter. I decline
the Respondent’s request to reconsider my ruling, and I reject
the offer of proof. Even if it is considered, however, I find the
CNA’s actions of loaning money to the NUHW does not
change the identity of the CNA. The Board gives “little
weight” to the assets/books factor, particularly where, as here,
the Respondent has not shown that fewer resources would be
committed to their representational obligations than prior to the
affiliation. Deposit Telephone Co., 349 NLRB 214, 223
(2007); Independence Residences, Inc., 358 NLRB 362 (2012).
There was no evidence presented to show that the union mem-
bers are not being represented at the same level as before the
affiliation. To assume that the Union changed the amount of
funding it devotes to representing its members by virtue of the
loans it provides to the NUHW would be speculative.
The Respondent further points to the Ninth Circuit’s decision
in SEIU v. NUHW, No. 10-16549 (March 26, 2010), assessing
fines to NUHW officers for violations of the Labor Manage-
ment Reporting and Disclosure Act, to argue that the nurses
who chose the CNA would believe that affiliation with an or-
ganization with such a sullied reputation is substantially dra-
matic to change the character of the CNA. Aside and apart
from significant foundational problems with this argument, of
all the nurses who testified, none were asked about this. The
Respondent also asserts that the nurses could potentially find
themselves striking in solidarity with the NUHW. These
speculative arguments are insufficient to sustain the Respond-
ent’s burden of proof.
CONCLUSION OF LAW
By failing and refusing to bargain with the Union in good
faith over the terms of a collective-bargaining agreement, fail-
ing and refusing to bargain with the Union over the termina-
tions of unit employees Robinson and Sandwell, and failing to
furnish relevant information to the Union, in violation of Sec-
tion 8(a)(1) and (5) of the Act, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of and Section 2(6) and (7) of the Act.

tion agreement spells out the loan repayment, however, I have no rea-
son to believe there are additional documents. The Respondent also
requests an adverse inference based on the Union’s failure to turn over
banking documents requested. I find the Union complied with the
subpoena request by turning over documents showing the electronic
transfers from the CNA to the NUHW as described in the transcript at
pp. 447–448.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD658
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Charging Party and the Acting General Counsel request
remedies in addition to those the Board generally grants for the
above violations. The Board has broad discretion to fashion a
just remedy to fit the circumstances of each case it confronts.
Maramont Corp., 317 NLRB 1035, 1037 (1995). The Supreme
Court has interpreted Section 10(c) as vesting the Board with
discretion to devise remedies that effectuate the policies of the
Act. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898–899 (1984).
The complaint requests that the notice to employees of the
violations found here be read to its employees at a mandatory
meeting during working hours. I decline to grant this enhanced
remedy.
To support the argument for a notice reading, the Charging
Party cites, HTH Corp., 356 NLRB 1397 (2011), and Homer D.
Bronson Co., 349 NLRB 512, 515–516 (2007), enfd. mem. 273
Fed.Appx. 32 (2d Cir. 2008). HTH Corp. involved multiple
rounds of litigation, including a previous order to set aside an
election. In Homer D. Bronson Co., the company president
gave multiple unlawful speeches among many other violations
during the course of a union organizing campaign. The Acting
General Counsel cites to Excel Case Ready, 334 NLRB 4
(2001), a case involving discharges and other coercive behavior
during an organizing campaign, and Federated Logistics &
Operations, 340 NLRB 255 (2003), enfd. 400 F.3d 920 (D.C.
Cir. 2005), where there were extensive and serious unfair labor
practices that pervaded the unit and had a long-term coercive
effect on the unit during an organizing drive. Although I find
the violations the Respondent committed are serious, they are
not “so numerous, pervasive, and outrageous” such that addi-
tional remedies are required “to dissipate fully the coercive
effects of the unfair labor practices found.” Fieldcrest Cannon,
Inc., 318 NLRB 470, 473 (1995).
The complaint also requests an extended bargaining order
under Mar-Jac Poultry, 136 NLRB 785 (1962). The Respond-
ent did not provide argument as to why Mar-Jac Poultry should
not apply. Because the circumstances of this case present ineq-
uities similar to those in Mar-Jac, I find it applies and will rec-
ommend the requested remedy of a 6-month extension of the
certification year.
The Charging Party requests litigation costs, asserting the
Respondent’s defenses are frivolous. While I found the Re-
spondent’s defenses meritless, it cannot be said they are entire-
ly frivolous. I therefore declined to grant this requested reme-
dy.
The Charging Party requests negotiation costs based on the
Respondent’s egregious conduct. It is clear to me there was no
intent to bargain, and the Respondent’s continued attempts to
challenge the Board’s certification make it clear it does not
welcome the Union. I find, however, that the conduct during
bargaining here is not as egregious as the employer’s conduct
in Unbelievable, Inc., 318 NLRB 857, 858 (1995), enf. denied
in part 118 F.3d 795 (D.C. Cir. 1997), Harowe Servo Controls,
250 NLRB 958 (1980), or other cases where the Board has
awarded this remedy. If similar conduct had occurred during
previous negotiations between the parties, I would come to a
different conclusion. Though a close call, I decline to grant this
requested remedy.
Having found the Respondent unlawfully refused to bargain
in good faith with the Union to establish a collective-bargaining
agreement, the Respondent must forthwith bargain in good faith
with the Union, on request, as the exclusive representative of
the unit and if an understanding is reached, embody the under-
standing in a signed agreement.
Having found the Respondent unlawfully refused to bargain
with the Union over the terminations of unit members Robinson
and Sandwell, the Respondent must, on request, bargain about
the terminations of Robinson, and Sandwell.
Having found the Respondent unlawfully refused to provide
the Union with information regarding emergency room nurses
who were terminated during the last 3 years, Respondent shall
be ordered to furnish this information to the Union.
In accordance with the Board’s decision in J. Piccini Floor-
ing, 356 NLRB 11, 15–16 (2010), I shall recommend that the
Respondent be required to distribute the attached notice to
members and employees electronically, if it is customary for
the Respondent to communicate with employees and members
in that manner. Also in accordance with that decision, the
question as to whether a particular type of electronic notice is
appropriate should be resolved at the compliance stage. Id, slip
op. at p. 3. See Teamsters Local 25, 358 NLRB 54 (2012).
I further recommend that the Respondent be ordered to cease
and desist from refusing to bargain in good faith with the Union
over the terms of a collective-bargaining agreement and termi-
nation of unit members, and from refusing to provide the Union
with information it requests that is relevant to its duties as the
bargaining unit’s representative.
[Recommended Order omitted from publication.]