Fremont Medical Center & Rideout Memorial Hospital

National Labor Relations Board - Board Decisions

Aug 27, 2009

354 N.L.R.B. 453 (N.L.R.B. 2009)

354 NLRB No. 68
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
The Fremont-Rideout Health Group d/b/a Fremont
Medical Center and Rideout Memorial Hospital
and California Nurses Association, AFL–CIO.
Cases 20–CA–34194 and 20–CA–34227
August 27, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On April 28, 2009, Administrative Law Judge William
N. Cates issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Charging Party each filed an answering
brief, and the Respondent filed a reply brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs,2 and has decided to affirm the judge’s rulings,
findings,3 and conclusions and to adopt the recom-
mended Order.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petitions for rehearing denied Nos. 08-1162, 08-1214
(July 1, 2009).
2 In its reply brief, the Respondent moved to strike a portion of the
General Counsel’s answering brief. The General Counsel filed a re-
sponse to the Respondent’s motion to strike, and the Respondent filed a
reply to the General Counsel’s response. After consideration of the
motion and briefs, we deny the motion as the General Counsel’s an-
swering brief is responsive to arguments raised by the Respondent’s
exceptions.
3 For institutional reasons, Member Schaumber joins his colleague in
adopting the judge’s finding of 8(a)(5) violations, as those findings are
not inconsistent with extant precedent. At the end of the day, Member
Schaumber agrees that Levitz Furniture Co. of the Pacific, 333 NLRB
717 (2001), cannot fairly be read to create an affirmative obligation on
the part of a union confronted with a withdrawal of recognition to no-
tify the employer that the union possesses evidence tending to negate
the employer’s evidence of loss of majority support. Nonetheless, he
notes that Levitz does state, albeit in dicta, that “had the Union not
asserted that it had contrary evidence, the Respondent would have had a
good case, based on the petition it received from a majority of the unit
employees, that the Union had, in fact, lost majority support.” Levitz,
supra at 725. That particular passage is obviously difficult to square
REMEDY
For the reasons set forth in Caterair International, 322
NLRB 64 (1996), we find that an affirmative bargaining
order is warranted in this case as a remedy for the Re-
spondent’s unlawful withdrawal of recognition. The
Board has held that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) refusal
to bargain with the lawful collective-bargaining represen-
tative of an appropriate unit of employees.” Id. at 68.4
In several cases, however, the U.S. Court of Appeals for
the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). Although the judge recommended an
affirmative bargaining order to remedy the Respondent’s
unlawful withdrawal of recognition, he did not justify
imposition of such an order to the extent required by the
U.S. Court of Appeals for the District of Columbia Cir-
cuit. Thus, for the reasons stated below, we agree with
the judge that an affirmative bargaining order is war-
ranted on the facts of this case.5
In Vincent, supra, the court summarized its require-
ment that an affirmative bargaining order “must be justi-
fied by a reasoned analysis that includes an explicit bal-
ancing of three considerations: ‘(1) the employees’ Sec-
tion 7 rights; (2) whether other purposes of the Act over-

with a reading of Levitz that renders a union’s nonassertion of contrary
evidence irrelevant; after all, if the only issue is whether, in fact, there
was a loss of majority support when the employer withdrew recogni-
tion, why would the majority in Levitz state that a union’s failure to
come forward would create a “good case”? Nonetheless, Member
Schaumber does not believe that it would be appropriate to divine from
that single Levitz sentence a safe harbor or affirmative defense based
upon a failure to disclose, particularly where, as here, the Respondent
was on notice that the Union was seeking signatures on reaffirmation
cards, never inquired as to the status of those efforts, and instead simply
announced that it was withdrawing recognition based upon the petition.
He leaves to another case whether such a disclosure obligation ought to
be imposed and under what circumstances.
4 Member Schaumber does not agree with the view expressed in
Caterair International that an affirmative bargaining order is “the tradi-
tional, appropriate remedy” for an 8(a)(5) violation. He agrees with the
District of Columbia Circuit that a case-by-case analysis is required to
determine if the remedy is appropriate. He recognizes, however, that
the view expressed in Caterair International represents extant Board
law. See Flying Foods, 345 NLRB 101, 109 fn. 23 (2005), enfd. 471
F.3d 178 (D.C. Cir. 2006); and Alpha Associates, 344 NLRB 782, 787
fn. 14 (2005).
5 In adopting the judge’s recommended affirmative bargaining order,
we do not rely, as the judge did, on alleged unfair labor practices found
by Administrative Law Judge John McCarrick in a separate case in-
volving these parties, as exceptions to Judge McCarrick’s findings are
currently pending before the Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ride the rights of employees to choose their bargaining
representatives; and (3) whether alternative remedies are
adequate to remedy the violations of the Act.’” Id. at
738.
Consistent with the court’s requirement, we have ex-
amined the particular facts of this case as the court re-
quires and find that a balancing of the three factors war-
rants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s unlawful withdrawal of recognition and re-
sulting refusal to collectively bargain with the Union. At
the same time, an affirmative bargaining order, with its
attendant bar to raising a question concerning the Un-
ion’s continuing majority status for a reasonable time,
does not unduly prejudice the Section 7 rights of em-
ployees who may oppose continued union representation
because the duration of the order is no longer than is rea-
sonably necessary to remedy the ill effects of the viola-
tion. Thus, restoring the status quo ante and requiring
the Respondent to bargain with the Union for a reason-
able time will vindicate the employees’ Section 7 right to
union representation. It will also give employees an op-
portunity to fairly assess the Union’s effectiveness as a
bargaining representative and determine whether contin-
ued representation by the Union is in their best interests.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of discouraging support for the Union. It also ensures
that the Union will not be pressured by the Respondent’s
withdrawal of recognition to achieve immediate results at
the bargaining table following the Board’s resolution of
the Union’s unfair labor practice charges and issuance of
a cease-and-desist order. Providing this period of insu-
lated bargaining will also afford employees a fair oppor-
tunity to assess the Union’s performance in an atmos-
phere free of the Respondent’s unlawful conduct.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s withdrawal of recogni-
tion and refusal to bargain with the Union. It would al-
low another challenge to the Union’s majority status be-
fore a reasonable period of time for bargaining has
passed, and before the taint of the Respondent’s previous
unlawful withdrawal of recognition has dissipated. That
would be particularly unfair in light of the fact that the
litigation of the Union’s charges took several months
and, as a result, the Union needs a reasonable period of
time to reestablish its representative status with unit em-
ployees. Moreover, the Respondent’s unilateral changes
subsequent to its unlawful withdrawal of recognition—
increasing wages and benefits for unit members—are
likely to have tainted employee disaffection with the Un-
ion arising during that period. In light of these circum-
stances, permitting a decertification petition to be filed
immediately might very well allow the Respondent to
profit from its own unlawful conduct. We find that these
circumstances outweigh the temporary impact the af-
firmative bargaining order might have on the exercise of
the rights of employees who oppose continued union
representation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order, with its temporary decertification
bar, is necessary to remedy the violations in this case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Fremont-Rideout Health
Group d/b/a Fremont Medical Center and Rideout Me-
morial Hospital, Yuba City and Marysville, California,
respectively, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Dated, Washington, D.C. August 27, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Cecily A. Vix, Esq. and Kathleen C. Schneider, Esq., for the
Government.1
Laurence R. Arnold, Esq. and Jean C. Kosela, Esq., for the
Hospital.2
Pamela Allen, Esq., for the Charging Party.3
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. These are
withdrawal of recognition and unilateral changes in wages,
hours, and other conditions of employment cases. I heard these
cases in trial in Marysville, California, on February 23 and 24,
2009. The cases originate from charges filed by the California
Nurses Association, AFL–CIO (the Union) on November 21,
2008, in Case 20–CA–34194 and on December 16, 2008, in

1 I shall refer to counsel for the General Counsel’s as counsel for the
Government or the Government.
2 I shall refer to counsel for the Hospital as counsel for the Hospital
or the Hospital.
3 I shall refer to counsel for the Charging Party as counsel for the
Union or the Union.
FREMONT MEDICAL CENTER & RIDEOUT MEMORIAL HOSPITAL 3
Case 20–CA–34227 against The Fremont-Rideout Health
Group d/b/a Fremont Medical Center and Rideout Memorial
Hospital (the Hospital). The prosecution of these cases was
formalized on February 4, 2009, when the Regional Director
for Region 20 of the National Labor Relations Board (the
Board), acting in the name of the Board’s General Counsel,
issued an order consolidating cases, consolidated complaint and
notice of hearing (the complaint) against the Hospital.
The complaint alleges on or about November 14, 2008, the
Hospital withdrew recognition of the Union as the exclusive
representative of the unit [a full description of the unit is set
forth elsewhere herein]. It is also alleged that from about No-
vember 17, 2008, to January 2009 the Hospital: granted two 5-
1/2-percent wage increases to unit employees; reduced unit
employees’ contributions for health premiums by 50 percent;
waived 100 percent of health insurance deductibles for unit
employees; matched by 33-1/3 cents on the dollar, up to the
first 3 percent of a unit employee’s contribution to their 403(b);
and, implemented a policy of cashing out paid time off, up to
80 hours per calendar year for unit employees. It is alleged that
from an unknown date in December 2008 through an unknown
date in January 2009, the Hospital: implemented new emer-
gency department protocols; reinstated a rapid medical evalua-
tion process; and, added an intake nurse assignment in the in-
terview area of the emergency department lobby without bar-
gaining with the Union about the effects of these changes.
Finally, it is alleged since about November 18, 2008, and con-
trary to past practice, the Hospital has prohibited union repre-
sentatives from accessing the Hospital’s properties and facili-
ties. It is alleged the Hospital’s actions violate Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act).
The Hospital, in a timely filed answer to the complaint, ad-
mitted various allegations in the complaint, but denied having
violated the Act in any manner alleged in the complaint.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. I carefully observed the demeanor of
the witnesses as they testified. I have studied the whole record,
the posttrial briefs, and the authorities cited therein. Based on
more detailed findings and analysis below, I conclude and find
the Hospital violated the Act substantially as alleged in the
complaint.
FINDINGS OF FACT
I. JURISDICTION, LABOR ORGANIZATION, AND
SUPERVISOR/AGENCY STATUS
The Hospital, a California nonprofit corporation, with offices
and places of business in Marysville and Yuba City, California,
has been engaged in the operation of hospitals and medical
clinics providing inpatient and outpatient medical care. During
the past 12 months, the Hospital, in conducting its business
operations, derived gross revenues in excess of $250,000 and
purchased and received goods valued in excess of $5000 which
originated outside the State of California. The Hospital admits,
and I find, it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The parties admit, the evidence establishes, and I find, the
Union is a labor organization within the meaning of Section
2(5) of the Act.
Theresa Hamilton is chief executive officer, Tresha More-
land is vice president human resources, Andy Mesquit is direc-
tor of human resources, Steve Booth is director of emergency
services, and Tracie Sizemore and Brandi Cherry are emer-
gency department supervisors for the Hospital. Each are admit-
ted supervisors and agents of the Hospital within the meaning
of Section 2(11) and (13) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
The Hospital operates hospitals providing acute and outpa-
tient care services. The facilities involved herein are Fremont
Medical Center located in Yuba City, California, and Rideout
Memorial Hospital located in Marysville, California. Rideout
Memorial has an emergency room but Fremont Medical Center
does not. Fremont Medical Center has a labor and delivery
department but Rideout Memorial does not; otherwise, the two
facilities offer the same services. The two hospitals are ap-
proximately 2-1/2 miles apart.
The Union was certified on September 20, 2006, as the ex-
clusive representative of the Hospital’s approximately 450 full-
time, regular part-time and per diem registered nurses who
provide direct patient care at the Hospitals’ above-described
locations. As earlier noted, a full description of the unit is set
forth elsewhere in this decision.
The parties commenced negotiations for a first collective-
bargaining agreement in late November or early December
2006. Labor Representative Glen Sharp, at pertinent times
herein, served as chief negotiator for the Union. The parties
actively negotiated for a little over a year. A representation
petition, Case 20–RD–2448, was filed on October 12, 2007,
and remained pending but blocked by unfair labor practice
charges (Cases 20–CA–33520, 20–CA–33510, and 20–CA–
33586) until the petition was withdrawn on November 21,
2008. It is stipulated that at the January 8, 2008, bargaining
session, the Hospital made, in writing, its last, best, and final
offer. The parties stipulated the Union thereafter engaged in a
strike on March 21, 2008, and made its last offer for the bar-
gaining unit to the Hospital in writing on May 14, 2008. The
Hospital in a May 21, 2008 letter rejected the Union’s last of-
fer. Thereafter, the Union made information requests and
communicated with the Hospital regarding changes in terms
and conditions of employment of unit employees, requesting to
bargain about such changes and related issues.
The parties stipulated there have been no bargaining sessions
held on a collective-bargaining agreement for the unit employ-
ees after January 8, 2008, and no strikes after March 21, 2008.
A representation petition, Case 20–RD–2468, was filed on
November 17, 2008, and withdrawn on November 21, 2008.
On November 13, 2008, the Hospital received certain evi-
dence it asserts established the Union had lost majority status.
On November 14, 2008, the Hospital notified the Union in
writing it had been presented with a petition signed by a major-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ity of the unit employees requesting the Hospital withdraw
recognition of the Union as the exclusive representative for the
unit employees. The signatures on the petition had been util-
ized in support of the RD petitions referenced herein. The
Hospital stated in its November 14, 2008 letter to the Union
that faced with actual evidence of the Union’s loss of majority
status, it was withdrawing recognition from the Union as the
exclusive representative of the unit employees “effective im-
mediately.”
On November 17, 2008, Hospital CEO Hamilton notified
unit employees in writing the Hospital had withdrawn recogni-
tion of the Union on November 14, 2008, as their exclusive
representative and the Hospital announced the implementation
of wage increases and other beneficial enhancements of work-
ing conditions.
It is stipulated the number of employees in the unit who met
the hours and specified weeks of work requirements immedi-
ately preceding November 14, 2008, was 452. It is further
stipulated that as of November 14, 2008, 234 employees in the
unit had signed the antiunion petition. It is undisputed that of
the 234 signatures on the antiunion petition, 112 were 7 months
old or older and of those 112 signatures, 72 were over a year
old. It is undisputed the Union did not notify the Hospital prior
to November 14, 2008, that it had signature cards from 18 unit
employees revoking their signatures on the antiunion petition
and reaffirming their support for the Union. The Hospital ac-
knowledges it was aware at the time it withdrew recognition the
Union was circulating revocation and reaffirmation cards
among unit employees. The Government notified the Hospital
of the revocation and reaffirmation cards on December 15,
2008, and the Hospital first saw the cards at trial herein.
2. The 18 executed revocation and reaffirmation cards
The question of whether the Union had lost the support of a
majority of the unit employees on November 14, 2008, and
whether the Hospital could validly withdraw recognition from
the Union on that date turns on the validity or authenticity of
the 18 executed revocation cards. The Government contends
18 unit employees who had previously signed the antiunion
petition had after signing the petition but before November 14,
2008, revoked their signatures on the antiunion petition and
reaffirmed their support for the Union. The Hospital contends
it was never notified of any revocations or reaffirmations before
it withdrew recognition on November 14, 2008.
The Union, fully aware of the antiunion petition and the rep-
resentation filings, attempted through its organizers and unit
employees to shore up its support. For example, Union Organ-
izer Trena Camara testified she came to the Hospital after the
representation election to continue to organize and work toward
obtaining “a good first collective bargaining agreement.”
Camara also testified the Union actively sought to have unit
employees sign cards reaffirming their support for the Union
and revoking their signatures on the antiunion petition. Camara
conducted a meeting with certain unit employees on October 1,
2008, at which she gave instructions to employees in soliciting
signature cards from their coworkers. She instructed those
soliciting signatures to be courteous, never coercive, and to
explain in detail what the card means and if a unit employee
chose to sign a card have them fill it out legibly, sign, date, and
return the card. Although a number of unit employees at-
tended, Camara specifically recalled that Katherine Zubal and
Glenda Hrones were present for this instructional meeting.
The signature cards utilized by the Union were green in
color, and often referred to as “the green cards.” The cards
reflect:
I, _____________ (print name) hereby revoke my signature
on any card, petition, or other document I may have signed at
any time repudiating or disowning support for the California
Nurses Association (CNA) as my representative with respect
to the terms and conditions of my employment with the Fre-
mont-Rideout Health Group and hereby affirm and/or reaf-
firm my support for CNA.
Dated: ______________ _____________________
(signature)
Registered Nurse Rosanna Sanders testified that on about
September 30 and October 15, 2008, she created approximately
65 flyers on each occasion to educate nurses in the emergency
department and throughout the Hospital what the Union had
done for them and why it was a good idea to keep the Union.
Sanders placed the flyers in the mailboxes for unit employees
as well as on bulletin boards and in employee restrooms.
The Hospital acknowledges being aware of the Union’s ef-
forts to have unit employees reaffirm support for the Union. In
fact, the Hospital in a flyer dated October 7, 2008, in part,
asked unit employees, why the Union was asking for signatures
from nurses to reaffirm their support for the Union. The Hospi-
tal answered that question in its flyer by suggesting the Union
was concerned by nurses who were trying to decertify the Un-
ion. The Hospital advised unit employees in the flyer they
were under no obligation to sign anything reaffirming their
support for the Union. [The flyer of the Hospital was offered
by the Government as Exh. 33. I rejected the exhibit inasmuch
as Hospital counsel acknowledged the Hospital was aware of
the reaffirmation efforts of the Union. The Government asked
that I reconsider my ruling and accept the exhibit. I am per-
suaded the exhibit casts additional light on the card signing
events at the time in question. According, I grant the Govern-
ment’s request and accept GC Exh. 33.]
In light of the above, I examine the 18 executed cards. Un-
ion Organizer Camara met with certain nurses at the Hospital’s
Marysville, California location on November 6, 2008. Camara
specifically met with registered nurses Antonietta Cabrera and
Vivienne Tuekpe and explained the purpose of the signature
cards telling them if they signed the cards they would be show-
ing their support for the Union and would be removing their
names from the decertification petition. Camara testified both
of the nurses signed and dated the cards in her presence and
returned the executed cards to her.
Camara testified on cross-examination that others were pre-
sent when she spoke with Cabrera and Tuekpe. Camara was
accompanied by Union Organizer Eleanor Godfrey. Camara
stated unit employee Nancy Finlay was present and she be-
lieved Nilo Morga was also present.
Union Organizer Godfrey testified she was present on No-
vember 6, 2008, and “witnessed the entire process” of Cabrera
FREMONT MEDICAL CENTER & RIDEOUT MEMORIAL HOSPITAL 5
and Tuekpe signing the green cards. Godfrey testified, “[W]e
told them about these revocation cards and asked if they would
like to sign, and they said they did.”
Registered Nurse Nancy Finlay testified she worked on No-
vember 6, 2008, and was present when Camara and Godfrey
spoke with certain unit employees on that date.
The Hospital called Human Resources Compliance Analyst
Kim Triplett who identified timecards for Nancy Finlay and
Nilo Morga, which Hospital counsel, contends shows neither
worked at the Hospital on November 6, 2008.
I am fully persuaded Cabrera’s and Tuekpe’s cards were
executed by them on November 6, 2008, and they were advised
of and knew the purpose for the cards at the time they signed
and returned the cards to Union Organizer Camara. The time-
cards of Finlay and Morga do not require, and I do not make,
any inference that Cabrera’s and Tuekpe’s cards are other than
valid or that the cards were signed at any time or place other
than indicated. Simply stated, I specifically credit Camara’s
and Godfrey’s testimony regarding the signing of the two cards
in question.
Registered Nurse Katherine Zubal testified she was trained
by Union Representative Sharp to solicit unit employees to sign
cards to revoke their signatures on the previously signed decer-
tification petition and reaffirm support for the Union. Zubal
solicited four unit employees to sign revocation cards.
Zubal spoke with Mandeep Nijjar on October 1, 2008, at the
Hospital asking if she had an interest in signing a card for the
Union. According to Zubal, Nijjar accepted a card which she
reviewed, dated, signed in Zubal’s presence, and returned to
Zubal who in turn provided the card to the Union.
I credit Zubal’s testimony and find Nijjar’s card properly
executed and valid. I reject the Hospital’s contention Zubal’s
testimony should be disregarded because she recalled with
great detail how individuals signed their cards but exhibited
general vagueness with respect to other surrounding circum-
stances and events. Zubal impressed me as attempting to testify
truthfully about the events in question and I credit her testi-
mony.
Zubal spoke with unit employee Helen Santos at the Hospital
on October 2, 2008, as Zubal was coming on shift and Santos
was going off shift. Zubal said she did not know what Santos’
position was on the Union so she explained what the cards were
and asked if she wanted to sign one. Santos wanted to think
about it because she was uncertain how long she might con-
tinue working for the Hospital but nonetheless took one of the
cards. Zubal testified before Santos left work she came back
and said she had signed the card and gave it to Zubal. Zubal
looked at the card and observed it was filled out, dated (Octo-
ber 2, 2008), and signed. I find Helen Santos’ card to be valid.
Zubal testified she encountered unit employee Parm Kaur on
September 30, 2008, at the Hospital as Kaur was completing
her shift for that day. Zubal asked Kaur if she wanted to sign a
union card. According to Zubal, Kaur accepted, reviewed,
dated, signed in Zubal’s presence, and returned the card to
Zubal. Zubal said she and Kaur had on several previous occa-
sions discussed the Union. Zubal gave Kaur’s executed card to
the Union. I find Kaur’s card valid.
Registered Nurse Art Orteza testified he overheard unit em-
ployees Kristin York and Jane Nu talking about whether York
had signed the right form or card for the Union. Orteza said he
jumped into the conversation and handed York the proper card
which he called a confirmation card and which she called a
revocation card. Orteza testified he observed York look at,
sign, date (October 26, 2008), and return the card to him which
he then gave to the Union. I credit Orteza’s undisputed testi-
mony and find York signed and dated the card as described by
Orteza and is a valid card.
Registered Nurse Diane DeLange testified she obtained
blank union cards from Union Representative Sharp who in-
structed her to be friendly and nonconfrontational when asking
coworkers to reaffirm their support for the Union by signing
one of the cards. DeLange solicited card signers in late Sep-
tember and October 2008. DeLange said she specifically met
with Nissa Cardenas between shifts at the Hospital on October
28, 2008. DeLange met with Cardenas and others inside the
Hospital but moved to the Hospital’s parking lot as the work
shift changed. DeLange told the employees present she had
green cards and asked if they knew what they were for. All
present said they did and Cardenas asked for one of the cards to
sign. DeLange gave Cardenas a card and watched as Cardenas
filled out the card on that date, signed it in her presence, and
returned the card to DeLange who gave it to the Union. I credit
DeLange’s undisputed testimony and conclude she has properly
authenticated Cardenas’ valid card.
Registered Nurse Darren Cordoza testified he was trained by
one of the Union’s organizers to solicit signature cards from
employees who had signed the decertification petition. Cor-
doza stated that at work around noon on October 5, 2008, Lila
Davalos, a friend of his, stated she had heard he was giving out
signature cards confirming support for the Union. Cordoza said
Davalos had in the past been antiunion but on this occasion she
continued to ask questions giving him the impression she was
becoming prounion. Cordoza did not give Davalos a card that
day because she asked to meet with him later away from work
and talk more. Cordoza said they met again twice on October
17, 2008, first at the Nurses Skills Fair. Cordoza said they went
to lunch together and later to Starbucks for coffee where they
talked more about the Union. Cordoza testified Davalos
seemed more interested in signing a card for the Union at that
point. Cordoza testified Davalos explained she had been called
in by the Hospital on several grievance procedures and she now
recognized the value of having union representation and ex-
plained she never wanted to be in a situation like that again
without union representation. Cordoza gave Davalos a card
which they read through and she signed, dated, and returned the
card to him.
The Hospital presented a timecard for Davalos that indicated
she did not work that day.
I credit Cordoza’s testimony regarding the circumstances of
Davalos signing a union card on October 17, 2008. I detected
no indication from Cordoza, while he was testifying, that in any
way indicated a faulty or inaccurate recollection on his part. I
am fully persuaded Cordoza and Davalos met, and took the
actions, as he testified, on October 17 notwithstanding the fact
her timecard seems to reflect she was not working at the time of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the Skills Fair. I note the timecard in question is unclear on its
face regarding the number of hours Davalos may have worked
that week in question. Simply stated, I do not find the timecard
entries on Davalos’ timecard to detract from Cordoza’s detailed
testimony. I find Davalos’ reaffirmation card to be authenti-
cated and valid.
Registered Nurse Glenda Hrones testified Paulina Landa
asked her for one of the green cards supporting the Union.
Hrones gave Landa a card and testified a coworker, Maureen,
not further identified, followed through with Landa. Hrones
said Landa signed the card in her presence and Maureen later
returned the card to Hrones. Hrones said she returned the card
to the Union through Heather Avalos.
On cross-examination, Hrones did not recall saying in her
pretrial Board affidavit that Landa signed the card in her pres-
ence and returned it to her right then rather than as she testified
at trial that the card was returned to her by Maureen. Hrones
attempted to explain there were two cards from Landa, one she
thought might have been misplaced so a second card was
signed.
While Hrones’ testimony regarding Landa’s card is not crys-
tal clear, I am persuaded she saw Landa sign the card as she
testified, on October 31, 2008. I find Landa’s card valid.
Hrones observed other union cards signed by other coworkers
and those card signers, as will be set forth hereafter, corrobo-
rated Hrones’ stated method of getting union cards signed.
Registered Nurse Lissette Willard testified she signed the
decertification petition of the Union but “felt intimidated” when
she did and thereafter wanted to take some action to revoke her
signature. Willard spoke with coworker Maureen Bartlett who
told her about the green signature cards, of which she could
sign and revoke her signature from the document she signed
decertifying the Union. Bartlett gave Willard a card which
Willard read, dated, signed, and immediately returned to Bart-
lett on October 15, 2008. I credit Willard’s uncontested testi-
mony and find her card valid.
Registered Nurse Erin Erickson testified coworker Liz Haw-
kins gave her a card to reaffirm her support for the Union.
Erickson read, signed, dated, and returned the card to Hawkins
on September 26, 2008. Erickson testified she had signed the
decertification petition “out of frustration” but in signing the
union card she was reaffirming her support for the Union. I
credit Erickson’s undisputed testimony and find her card valid.
Registered Nurse Zubal testified she spoke with coworker
Brent Penn about the union cards between shifts at the Hospital
on September 30, 2008. Penn asked for a card to sign. Zubal
testified Penn reviewed the card, signed it in her presence, and
returned it to her and she in turn gave the card to the Union.
Penn testified he signed a card reaffirming his support for the
Union on September 30, 2008. Penn said Zubal did not need to
say much about the card because he knew what it was for when
he signed it. Penn said he signed the card because of some
things that happened to a coworker causing him to conclude it
would be better to have a union and have someone behind the
employees. I find Penn’s card valid.
Registered Nurse Christine Correa testified she was given
green signature cards for the Union. She said she spoke with
one nurse, Helena Domanski, in the recovery room about sign-
ing a card. According to Correa, Domanski had just come back
to work from a leave of absence and was disgruntled about
“something . . . ‘going off’” in the operating room and said,
“[T]his is when I feel like we need a union.” Correa asked
Domanski if she wanted to sign a union card and Domanski
looked it over, signed, and returned the card to Correa. Do-
manski testified she signed, dated (October 1, 2008), and re-
turned the card to Correa “because I like her and I was having
some issue[s] with my supervisor.” Domanski, on cross-
examination, stated she did not sign the card because she
wanted the Union.
I credit Domanski’s testimony and find she signed her union
card on October 1, 2008, in part because she was having issues
with her supervisor. I do not find her testimony regarding
whether she did or did not want the Union to detract from the
validity of her card. She signed the union card, in part, because
of concerns with working conditions. I find Domanski’s card
valid.
Registered Nurse Glenda Hrones testified she was contacted
by Aman Johal in October 2008. Johal asked Hrones if she had
cards supporting the Union, that four of the nurses would like
her to come up to Four Main of the Marysville facility because
they wanted to sign the cards. The other three were Mara
Rzemieniak, Manisha Sharma, and Gurpreet Gill. Hrones took
Johal and the other three nurses’ signature cards. Hrones testi-
fied the four told her they wanted to sign the cards because they
were disappointed with management at the Hospital.
Hrones testified nurses Gurpreet Gill, Aman Johal, Manisha
Sharma, and Mara Rzemieniak filled out, signed, and dated the
union cards in her presence at the Hospital on October 25,
2008. Sharma testified she signed her card to support the Un-
ion because she believed in strength in unity. Gill testified
Hrones gave her a card which she read, signed, and returned to
Hrones on October 25, 2008. Johal testified she signed the
union card because she had a change of mind after having
signed the decertification petition. Johal testified that after
reading the union card given to her, as best she could recall by
Hrones, she signed, dated, and returned the card immediately to
Hrones. Rzemieniak testified she dated and signed her card
reaffirming support for the Union after she had an opportunity
to read it. I credit the testimony of Gill, Johal, Sharma, and
Rzemieniak regarding their signing the union cards. Each ap-
peared, as they testified, to be testifying truthfully. I find their
cards valid.
Registered Nurse Hrones testified she spoke with Maribel
Dela Cruz about the green signature card supporting the Union.
Hrones testified Dela Cruz “said she wanted to sign the green
card, she supported the Union.” Hrones testified she later re-
ceived Dela Cruz’ signed card from nurse Beth Borremeo.
Registered Nurse Dela Cruz testified she read and signed a card
reaffirming her support for the Union on October 27, 2008.
Dela Cruz first testified about a “lot of viciousness going on” at
the Hospital and that nurses might be fired so she signed the
card. On cross-examination, Dela Cruz said she signed the
reaffirmation card for the Union because she could get fired if
she did not. However, when thereafter recalled as a witness,
Dela Cruz explained she decided to sign the card reaffirming
her support for the Union because she had a bad work experi-
FREMONT MEDICAL CENTER & RIDEOUT MEMORIAL HOSPITAL 7
ence with a different hospital and decided to support the Union.
Dela Cruz also testified that when she previously signed the
decertification petition she did so because she was told if she
did not she might be fired. Dela Cruz explained the comments
about being fired referred to what might happen if she failed to
sign the decertification petition not if she failed to sign the card
reaffirming her support for the Union.
Although Dela Cruz at times appeared to be confused as she
testified, I am, nevertheless, persuaded she did so truthfully. I
find her card valid.
I am fully persuaded the 18 cards signed by the unit employ-
ees, as outlined above, revoking their signatures on the prior
antiunion decertification petition are valid. I find the cards
were signed by the 18 unit employees on the dates reflected
thereon, and that the cards clearly expressed the unit employees
were reaffirming their support for the Union. There is abso-
lutely no showing that those soliciting signatures for the cards
misrepresented the purpose or use to be made of the cards.
3. Withdrawal of recognition
Having found the 18 reaffirmation of the union cards valid, I
turn to the issue of whether the Hospital lawfully withdrew
recognition from the Union on November 14, 2008. First, I
note it is clear, as set forth herein, the Hospital had before it, as
of November 13, 2008, a petition reflecting 51.8 percent of the
unit employees no longer desired to have the Union as their
exclusive representative. It is also clear the Hospital an-
nounced its withdrawal of recognition of the Union effective
November 14, 2008, based on the antiunion petition. It is also
clear the Union did not present the Hospital with the 18 reaf-
firmation cards prior, or near in time, to the Hospital’s an-
nounced withdrawal of recognition.
The Board in Levitz Furniture Co. of the Pacific, 333 NLRB
717 (2201), carefully outlined whether and under what circum-
stances an employer may lawfully withdraw recognition unilat-
erally from an incumbent union. In Levitz, supra at 717, the
Board stated:
We therefore hold that an employer may unilaterally
withdraw recognition from an incumbent union only
where the union has actually lost the support of the major-
ity of the bargaining unit employees.
Under our new standard, an employer can defeat a post
withdrawal refusal allegation if it shows, as a defense, the
union’s actual loss of majority status.
The Board continued in Levitz, supra at 723:
In our view, there is no basis in either law or policy for allow-
ing an employer to withdraw recognition from an incumbent
union that retains the support of a majority of the unit em-
ployees, even on a good-faith belief that majority support has
been lost. Accordingly, we shall no longer allow an employer
to withdraw recognition unless it can prove that an incumbent
union has, in fact, lost majority status.
The Board in Levitz, supra at 723, also observed:
The fundamental policies of the Act are to protect employees’
right to choose or reject collective-bargaining representatives,
to encourage collective bargaining, and to promote stability in
bargaining relationships. If employees’ exercise of the right
to choose union representation is to be meaningful, their
choices must be respected by employers. That means that
employers must not be allowed to refuse to recognize unions
that are, in fact, the choice of a majority of their employees. It
also means that collective-bargaining relationships must be
given an opportunity to succeed without continual baseless
challenges. These considerations underlie the presumption of
continuing majority status.
The Board in Levitz, supra at 725, emphasized:
that an employer with objective evidence that the union has
lost majority support—for example, a petition signed by a
majority of the employees in the bargaining unit—withdraws
recognition at its peril. If the union contests the withdrawal of
recognition in an unfair labor practice proceeding, the em-
ployer will have to prove by a preponderance of the evidence
that the union had, in fact, lost majority support at the time the
employer withdrew recognition. If it fails to do so, it will not
have rebutted the presumption of majority status, and the
withdrawal of recognition will violate Section 8(a)(5) [foot-
note omitted].
We think it entirely appropriate to place the burden of
proof on employers to show actual loss of majority sup-
port.
The Board summed up its holdings in Levitz, supra at 725:
. . . unless an employer has proof that the union has actually
lost majority support, there is simply no reason for it to with-
draw recognition unilaterally.
Did the Hospital demonstrate it had knowledge of an actual
loss of majority status for the Union at the time it withdrew
recognition from the Union on November 14, 2008? The evi-
dence clearly establishes it did not. Of the 234 signatures on
the petitions, 18 were revoked prior to the withdrawal of recog-
nition. Subtracting those 18 signatures from the 234 on the
anti-union petition results in only 216 valid signatures remain-
ing. This is clearly less than 50 percent [47.8 percent] of the
452-employee bargaining unit.
Although the Hospital was aware the Union was attempting
to gather revocations of the disaffection signatures, the Hospital
did not ask for and was not offered proof of the revocations at
the time it withdrew recognition. Did the Union have any obli-
gation or burden to advise the Hospital of the 18 reaffirmation
signature cards prior to the Hospital’s withdrawing recognition
or immediately after the Hospital announced its withdrawal? I
find the Union had no burden nor was it obligated, in any way,
to notify or advise the Hospital of the 18 cards in its possession
which were executed prior to the withdrawal of recognition by
the Hospital. I note the Hospital learned of the number of sig-
natures on the antiunion petition one day and the very next day
announced it was withdrawing recognition of the Union as the
unit employees’ exclusive representative. The Union had no
time to respond even if it had desired to do so. In HQM of
Bayside, LLC, 348 NLRB 758, 759 (2006), the Board stated:
The Union does not have to demonstrate conclusively to the
employer prior to withdrawal of recognition that it still has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
majority status. Rather, it is the employer’s burden to show
an actual loss of the union’s majority support at the time of
the withdrawal of recognition. [Footnote omitted.]
Examining the issue further, first I note, as earlier explained,
the evidence the Hospital relied on in withdrawing recognition
did not demonstrate the Union’s actual loss of majority status
because 18 of those signing the antiunion petitions had revoked
their signatures and reaffirmed their support for the Union be-
fore the Hospital’s withdrawal of recognition. Second, the
Union was under no obligation to notify the Hospital, even if it
had time and an opportunity, of its continued majority status by
way of the reaffirmation cards it had obtained. The Hospital’s
withdrawal of recognition herein was at its peril. The Union
contested the withdrawal of recognition and the Hospital failed
to prove, at trial, by a preponderance of the evidence, the Union
had in fact lost majority support at the time it withdrew recog-
nition. Accordingly, I find the Hospital has not rebutted the
Union’s majority status, and its withdrawal of recognition on
November 14, 2008, violates Section 8(a)(5) and (1) of the Act.
The Hospital must recognize and bargain with the Union.
The Government argues the antiunion petition is also further
invalid and may not be relied upon by the Hospital to establish
a loss of majority status because 112 of the signatures predate
November 14, 2008, by at least 7 months and of those 112 sig-
natures, 72 were more than a year old. The Government argues
Board law precludes such “stale” signatures from being relied
upon to support a withdrawal of recognition.
The Hospital argues the Board has never adopted a time rule
of “staleness,” in the absence of changed circumstances, be it 7
months, a year, or more, to invalidate a disaffection petition
signature.
I note the facts underlying the staleness issue are not in dis-
pute and the parties addressed the issue in their posttrial briefs.
I nevertheless find it unnecessary to reach the staleness of sig-
natures’ issue inasmuch as the Hospital never demonstrated a
loss of majority status of the Union even including the signa-
tures the Government contends were too stale to count.
4. The unilateral changes
As fully set forth elsewhere herein, it is alleged at paragraph
8 of the complaint the Hospital, without notice to the Union,
and without an opportunity for the Union to bargain with the
Hospital, unilaterally granted a wage increase, reduced health
premiums for unit employees, waived 100 percent of health
insurance deductible for unit employees, established a 403(b)
matching funds program, and implemented a paid time-off
cash-out policy of up to 80 hours per year.
Hospital CEO Hamilton, on November 17, 2008, sent a
memorandum to all unit employees stating a majority of the
unit employees had spoken and as a result thereof the Hospital
had withdrawn “recognition of CNA as your collective bargain-
ing representative, effective November 14, 2008.” CEO Hamil-
ton continued, “We are gratified that nurses have chosen a rela-
tionship that allows us to work together—collectively and indi-
vidually—to our mutual benefit.” CEO Hamilton continued:
As you know, changes to the terms and conditions of em-
ployment were, until now, subject to the outcome of collec-
tive bargaining negotiations. Although we only recently re-
ceived your petition we are already looking to the future. Pre-
cisely how we proceed from here must be carefully consid-
ered, as CNA has already announced that they will not accept
your decision and will attempt to invalidate it. However, in
order to maintain our competitiveness with other comparable
area hospitals, we are implementing wage increases and bene-
fit enhancements. Details are attached.
On November 18, 2008, the Hospital provided unit employ-
ees the details in a memorandum advising them specifically of
changes it was implementing. The memorandum captioned
“Wages, Benefits and Programs Available to Eligible Nurses”
announced, in part: two 5-1/2-percent wage increases; it was
matching 33-1/3 cents on the dollar, up to the first 3 percent of
a unit employee’s contribution to their 403(b); it was reducing
unit employees’ contributions for health premiums by 50 per-
cent; it was waiving 100 percent of health insurance deductibles
for unit employees; and, it was implementing a policy of cash-
ing out paid time off, up to 80 hers per calendar year for unit
employees.
The Hospital acknowledges it implemented the above
changes in question on or after November 17, 2008, but con-
tends, in its posttrial brief, the facts establish, with respect to
each of the above-described changes, the Union not only had
notice, but did in fact “thoroughly bargain with the [Hospital]
to the point of impasse, regarding the terms of every change
implemented.”
With regard to the wage increases the Hospital asserts the in-
creases were exactly as proposed by both the Hospital and Un-
ion and were contained in the Hospital’s last, best, and final
offer to the Union. The Hospital asserts the other changes at
issue here were also set forth in its last, best, and final offer.
The Hospital, as noted elsewhere herein, made its last, best,
and final offer to the Union on January 8, 2008. On May 14,
2008, the Union responded to the Hospital’s last, best, and final
offer with a “significantly modified” proposal of its own. The
Union’s cover letter with its lengthy proposal stated in part:
This modified proposal is made in a good faith effort to re-
solve our remaining differences and as a renewed request for
the [Hospital] to return to the bargaining table and negotiate a
settlement which will benefit RNs, patients and the commu-
nity.
The Hospital in a May 21, 2008 letter to the Union, ac-
knowledged the Union’s counterproposal and expressed appre-
ciation for the Union’s accepting the Hospital’s proposals re-
garding education leave and Safe Floating, as well as certain
other movements by the Union, but added:
Apart from those changes, however, the [Hospital] sees little
if anything in the latest document that is changed from CNA’s
previous proposals. It is abundantly clear that CNA has not
agreed to the [Hospital’s] Last, Best & Final Offers, and that,
in addition to all the other outstanding fundamental differ-
ences, there are other remaining differences too numerous to
recount in this letter. Thus, while your proposal did reflect
some movement, it hardly resolves the remaining differences.
FREMONT MEDICAL CENTER & RIDEOUT MEMORIAL HOSPITAL 9
The Government and Hospital stipulated there have been no
bargaining sessions held on a collective-bargaining agreement
for the unit employees since January 8, 2008.
The Hospital asserts and the Government, in its posttrial
brief, appears to concede the parties, were at impasse on the
above changes. The Hospital argues that having reached a
legitimate impasse in all areas after engaging in good-faith
bargaining it was free to lawfully implement the proposals con-
tained in its last, best and final offer regardless of the Union’s
status, and therefore could have effected the very changes al-
leged in the instant charges even absent clear proof that the
Union had lost its majority status by November 2008.
The Government argues that because the Hospital could not
lawfully withdraw recognition from the Union, the changes to
unit employees’ terms and conditions of employment imple-
mented since the withdrawal are unlawful.
First, it is clear the Hospital, after it had withdrawn recogni-
tion from the Union, implemented the above outlined changes
on or about November 17, 2008. Second, the Hospital gave no
advance notice to the Union of its implementation of the
changes. Third, I assume, without deciding, based on the Gov-
ernment conceding the point, that the parties were at impasse in
negotiations as of May 2008. In light of all the facts, I am per-
suaded the Hospital may not unlawfully withdraw recognition
from the Union and then attempt to have its unilateral actions
after withdrawal of recognition be justified because the parties
were at impasse before the unlawful withdrawal of recognition.
Once the Hospital unlawfully destroyed its bargaining relation-
ship with the Union by withdrawing recognition from the Un-
ion, it forfeited any good-faith impasse implementation of its
proposals privilege. Stated differently, and in agreement with
Government counsel, once the Hospital entered into a bad-faith
posture by its unlawful withdrawal of recognition on November
14, 2008, the Hospital lost its privilege to unilaterally imple-
ment the terms of its last, best, and final offer. Accordingly, I
find the Hospital violated Section 8(a)(5) and (1) of the Act
when on November 17, 2008, it unilaterally implemented the
changes addressed above without notice to, or bargaining with
the Union, regarding the changes and the effects of the changes.
It is alleged at paragraph 8(b) of the complaint that from an
unknown date in December 2008 through an unknown date in
January 2009 the Hospital implemented, without affording the
Union an opportunity to bargain with it about the effects of its
new emergency department protocols, its reinstatement of a
rapid medical evaluation process, and the adding of an intake
nurse assignment in the interview area of the emergency de-
partment lobby. The parties stipulated that after the withdrawal
of recognition the Hospital implemented emergency department
changes through protocols, reinstated a rapid medical evalua-
tion process, and added an intake nurse assignment to the de-
partment.
Hospital Director of Emergency Services Booth notified Un-
ion Representative Sharp in writing on November 11, 2008, the
Hospital intended to implement the changes in question in the
emergency department. Booth advised Sharp, “While these
changes primarily relate to the classification of patients and
initiation of assessment procedures, there will likely be an im-
pact on the working conditions of bargaining unit nurses.”
Booth requested that Sharp:
Please advise me at your earliest opportunity if you would
like to meet to negotiate over the potential impact of the
changes. As the ED Medical Staff is eager to implement
these changes, I would appreciate your efforts to advise me of
your wishes by Wednesday, November 19, 2008.
The Union responded in writing on November 17, 2008, ex-
pressing a desire to negotiate regarding the changes, requested
information related to the changes, and suggested meeting dates
for negotiations.
On November 18, 2008, Director of Emergency Services
Booth notified the Union that in view of the fact the Hospital
had withdrawn recognition of the Union on November 14,
2008, “we will not be negotiating with CNA regarding the pro-
posed changes in the Emergency Department and will not be
providing the information requested.”
Union Representative Sharp testified regarding areas he
would have sought effects bargaining on would have been how
the Hospital came about deciding the new assignments, whether
new work duties were added to the department, whether the
new assignments were made by seniority or some other method
and whether any bargaining unit work was taken away or
eliminated by the changes.
Emergency Department Registered Nurse Sanders testified
that prior to the new protocols being implemented on December
20, 2008, the nurses followed standing orders related to emer-
gency room patient care. Sanders testified that pursuant to the
standing orders the charge nurse would order certain proce-
dures such as “some blood work, diagnostics such as x-rays,
that sort of thing.” Sanders stated that pursuant to the newly
implemented protocols “initiatives are a little more comprehen-
sive, they entail the diagnostics, the x-rays, the blood work,
whether or not someone gets an IV, whether or not they get
oxygen, whether or not they get a Foley catheter placed,
whether or not their urine samples are required, much more
indepth.” According to Sanders, the staff nurses still clear pro-
cedures with the charge nurse but are called upon to make de-
terminations and recommendations on a much wider range of
procedures.
Emergency Department Registered Nurse Sanders testified
that about January 26, 2009, an intake registered nurse position
was added in the lobby of the emergency department. The
intake nurse does “a quick registration that entails name and
what they’re there for.” The intake nurse looks over the patient
and “immediately” makes a determination as to the level of
acuity for the patient. If the intake nurse determines a high
acuity for the patient, the intake nurse escorts the patient imme-
diately to a higher acuity level of the emergency department.
Sanders testified that prior to this change, a patient came to the
lobby of the emergency department proceeded to register and
then waited until called to the triage nurse who took the pa-
tient’s vitals and then decided what level of acuity the patient
warranted. Sanders testified that when the intake nurse position
was established, the Hospital did not add a new registered nurse
to the emergency department. Sanders testified the triage proc-
ess also changed in that under the new procedures a nurse prac-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
titioner or physician’s assistant was now involved in the proc-
ess and “also writes initial orders of what they think would best
address the patients’ issues . . . .” Prior to this change, nurse
practitioners and physician’s assistants had not been involved at
this point in the emergency department.
First, the Hospital asserts it notified the Union of the antici-
pated emergency department changes and offered to meet and
negotiate the impact of the changes. Second, the Hospital ar-
gues there was no impact on unit employees asserting nothing
actually changed involving their hours or working conditions.
It is clear the Hospital gave notice to the Union about the
changes in the emergency department and offered to bargain
about the effects thereof. The Hospital even asked the Union to
inform it if the Union wished to negotiate the effects and to
respond by a certain date. The Union timely notified the Hos-
pital it desired to negotiate regarding the effects but the very
next day the Hospital declined in writing to do so stating it had
withdrawn recognition of the Union. I find the Hospital clearly
did not fulfill its obligations regarding effects bargaining. I
reject the Hospital’s assertion the changes did not impact the
working conditions of the unit employees. First, I note when
the Hospital notified the Union of the changes even it recog-
nized the “likely” impact on the working conditions of the unit
employees. Union Representative Sharp alluded to various
concerns he would have been raised in negotiations, such as,
whether additional and/or new duties were being added to the
unit employees; whether seniority applied in selecting the In-
take nurse; and, whether any work duties were removed from
the emergency department. It is clear the duties of the staff
nurses in the emergency department changed with respect to
triage procedures. It appears triage employees were required to
make additional decisions and undertake greater actions than
before with regard to patient care. These changes are substan-
tial and material and impact the terms and conditions of em-
ployment of unit employees. The Hospital was and is required
to bargain about the effects of these changes and I so find. The
Hospital’s refusal to do so violates Section 8(a)(5) and (1) of
the Act.
It is alleged at paragraph 8(c) of the complaint that the Hos-
pital, since about November 18, 2008, and, contrary to its past
practice, has prohibited union representatives from accessing
the Hospital’s property and facilities.
The parties stipulated that after the withdrawal of recogni-
tion, the Hospital implemented changes to the Union’s access
to the sidewalk on the Hospital’s property at G Street and in the
cafeteria. Union Organizer Camara testified, without contradic-
tion, that prior to the withdrawal of recognition, the Union’s
representatives were allowed access to the sidewalks in front of
the Hospital and specifically to the cafeteria at the Hospital.
Camara stated that after the withdrawal of recognition, the Un-
ion was “moved out of being in front of the Hospital and out to
H Street.”
The Hospital acknowledges it prohibited nonemployee union
solicitors from access to G Street on and after November 19,
2008. The Hospital acknowledges it prohibited union represen-
tatives from soliciting and distributing literature in the cafete-
rias after the withdrawal of recognition but did allow union
representatives to come to its cafeterias for food or drink as it
would any other nonemployee.
The Hospital argues the unit employees have no right to have
union representatives on the premises to speak with them, dis-
tribute literature to them or meet with them, and, the Union has
no derivative right under Section 7 of the Act to such access.
I find the Hospital violated the Act by changing its past
practice of allowing union representatives access to its side-
walks and cafeterias after its withdrawal of recognition. I need
not address access issues beyond that the Hospital changed its
established practice without notice to, or bargaining with, the
Union. I find the Hospital’s actions violate Section 8(a)(5) and
(1) of the Act.
5. Affirmative bargaining order
My recommended affirmative bargaining order will vindi-
cate the Section 7 rights of the unit employees who were denied
the benefits of collective bargaining by the Hospital’s with-
drawal of recognition on November 14, 2008.
Because the Hospital committed unfair labor practices, an af-
firmative bargaining order is necessary. I note the Hospital
committed unfair labor practices before and after its withdrawal
of recognition on November 14, 2008. The unfair labor prac-
tices before the withdrawal of recognition are set forth in Judge
John J. McCarrick’s decision The Fremont-Rideout Health
Group et. al. and California Nurses Association, AFL–CIO,
JD(SF)–05–09 involving the same parties herein. Judge
McCarrick found the Hospital violated Section 8(a)(1), (3), and
(5) of the Act beginning August 24, 2007, and concluding Feb-
ruary 29, 2008. Among Judge McCarrick’s findings, which are
on appeal to the Board, are: (1) A removal of scheduling duties
from bargaining unit employees without providing notice and
opportunity to bargain; (2) Direct dealing with bargaining unit
employees by soliciting their interest in having Saturday shifts
staffed as regular shifts rather than on-call shifts; (3) Refusing
to provide information regarding written discipline of a unit
employee; and (4) Installing a hidden surveillance camera with-
out notice or opportunity to bargain.
The unfair labor practices after withdrawal include unilateral
changes to unit employees’ benefits and union access to its
facilities without notice and bargaining and changes in the
emergency department without bargaining regarding the effects
of the changes. In light of these circumstances, it is necessary
to restore the status quo ante and require the Hospital to bargain
with the Union for a reasonable time so the unit employees’
Section 7 rights can be vindicated. During this time of bargain-
ing, the unit employees can assess the Union’s effectiveness as
their exclusive representative and decide whether their best
interests are served by having the Union continue to represent
them.
My recommended bargaining order will reinstate the Union
to its position as the unit employees chosen representative, a
position the Union held before the Hospital’s unlawful actions.
This restoration serves the purposes of the Act by enhancing
industrial peace and bringing about good-faith meaningful col-
lective bargaining.
I am persuaded an alternative remedy would be totally in-
adequate to correct the Hospital’s withdrawal of recognition
FREMONT MEDICAL CENTER & RIDEOUT MEMORIAL HOSPITAL 11
and refusal to bargain with the Union because it would destroy
the efforts of the unit employees to have their chosen represen-
tative bargain for them toward a labor agreement.
I find an affirmative bargaining order is absolutely essential
to remedy the violations found herein.
On the basis of the above findings of fact, partial conclusions
of law, the record as a whole and Section 10(c) of the Act, I
make the following
ADDITIONAL CONCLUSIONS OF LAW
1. The Hospital violated Section 8(a)(5) and (1) of the Act
since November 14, 2008, by failing and refusing to bargain
with the Union as the exclusive collective-bargaining represen-
tative of its employees in the following appropriate unit:
All full-time and regular part-time and per diem Registered
Nurses in positions requiring a Registered Nurse (RN) license
and who provide direct patient care and are employed by Re-
spondent at and out of Fremont Medical Center located at 970
Plumas Street, Yuba City, CA and/or Rideout Memorial Hos-
pital located at 726 Fourth Street, Marysville, California; ex-
cluding all non-professional employees, non-Registered
Nurses, Traveler Registered Nurses, Registry Registered
Nurses, Care Coordinators (discharge planning), Physician’s
Assistants (PAs), RN Clinical Systems Analysts, RN Program
Coordinators in Cardiac Rehab, RN Focus Review Patient
Account Nurse Auditors, RN Focus Review Medical Records
Analysts, ICU Outcome Coordinators, RN Education Coordi-
nators, Clinical Nurse Specialists, Infection Control Nurses,
RN midwives, managerial employees, confidential employ-
ees, guards and supervisors as defined in the Act.
2. The Hospital violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition from the Union on November 14,
2008.
3. The Hospital violated Section 8(a)(5) and (1) of the Act
by unilaterally:
(a) Granting two 5-1/2-percent wage increases to unit em-
ployees.
(b) Reducing unit employee’s contributions for health pre-
miums by 50 percent.
(c) Waiving 100 percent of health insurance deductibles for
unit employees.
(d) Matching by 33-1/3 cents on the dollar up to the first 3
percent of a unit employee’s contribution to their 403(b).
(e) Implementing a policy of cashing out paid time off, up to
80 hours per calendar year for unit employees.
4. The Hospital violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union regarding the effects of
changes implemented in the emergency department, which
changes were:
(a) Implementing new emergency department protocols.
(b) Reinstating a rapid medical evaluation process.
(c) Adding an intake nurse assignment in the interview area
of the emergency department lobby.
5. The Hospital violated Section 8(a)(5) and (1) of the Act
by, since on or about November 18, 2008, and contrary to its
past practice, prohibiting union representatives from accessing
the Hospital’s properties and facilities.
6. The unfair labor practices described above are unfair la-
bor practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found the Hospital has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
Having found the Hospital unlawfully withdrew recognition
of the Union, and thereafter unlawfully refused to bargain with
the Union as the exclusive representative of the unit employees,
I recommend the Hospital be ordered to recognize and bargain
collectively, upon request, with the Union as the exclusive rep-
resentative of the Hospital’s unit employees with respect to
wages, hours, and other terms and conditions of employment
and, if an agreement is reached, embody it in a signed docu-
ment.
Having found, as specifically set forth above, the Hospital
made unilateral changes in the terms and conditions of em-
ployment of its unit employees, I recommend the Hospital, if
requested by the Union, rescind any unilateral changes to
wages, benefits, and conditions of employment implemented
since the withdrawal of recognition on November 14, 2008.
Nothing in this recommendation shall be construed to require
the Hospital to withdraw any benefits previously granted,
unless requested by the Union.
Having found the Hospital unlawfully, and contrary to its
past practice, prohibited union representatives from accessing
the Hospital’s properties and facilities, it is recommended the
Hospital be ordered to restore access to the Union’s representa-
tives to the extent permitted prior to November 18, 2008.
Having found the Hospital unlawfully refused to bargain
about the effects of changes made to the emergency depart-
ment, it is recommended the Hospital be ordered to bargain
about the effects of such changes.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended4
ORDER
The Respondent, The Fremont-Rideout Health Group d/b/a
Fremont Medical Center and Rideout Memorial Hospital, Yuba
City and Marysville, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union as the ex-
clusive representative of its employees in the unit described
below.
(b) Withdrawing recognition from the Union as the exclusive
representative of its employees in the following unit:
All full-time and regular part-time and per diem Registered
Nurses in positions requiring a Registered Nurse (RN) license

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
and who provide direct patient care and are employed by Re-
spondent at and out of Fremont Medical Center located at 970
Plumas Street, Yuba City, CA and/or Rideout Memorial Hos-
pital located at 726 Fourth Street, Marysville, California; ex-
cluding all non-professional employees, non-Registered
Nurses, Traveler Registered Nurses, Registry Registered
Nurses, Care Coordinators (discharge planning), Physician’s
Assistants (PAs), RN Clinical Systems Analysts, RN Program
Coordinators in Cardiac Rehab, RN Focus Review Patient
Account Nurse Auditors, RN Focus Review Medical Records
Analysts, ICU Outcome Coordinators, RN Education Coordi-
nators, Clinical Nurse Specialists, Infection Control Nurses,
RN midwives, managerial employees, confidential employ-
ees, guards and supervisors as defined in the Act.
(c) Unilaterally: changing wages, health insurance contribu-
tions, health insurance deductibles, matching contributions to
employees’ 403(b) plans, and cashing out paid time off.
(d) Refusing to bargain with the Union about the effects of
its implementing new emergency department protocols, rein-
stating rapid medical evaluation processes, and adding an in-
take nurse assignment in the interview area of the emergency
department.
(e) Prohibiting, contrary to its past practice, union represen-
tatives from accessing the Hospital’s properties and facilities.
(f) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith with the
California Nurses Association, AFL–CIO as the exclusive rep-
resentative of the Hospital’s employees in the unit, described
above, with respect to wages, hours, and other terms and condi-
tions of employment and, if an agreement is reached, embody it
in a signed document.
(b) If the Union requests: cancel the two wage increases
unlawfully granted the unit employees; reinstate the 50-percent
reduction of unit employees’ contributions for health premi-
ums; rescind the 100-percent waiver of health insurance de-
ductibles for unit employees; rescind the matched contributions
to the unit employees’ 403(b) plans; rescind the policy of cash-
ing out paid time off, up to 80 hours per calendar year for unit
employees; and, upon the Union’s request, bargain regarding
the effects of implementing new emergency department proto-
cols, reinstating a rapid medical evaluation process, and adding
an intake nurse assignment in the emergency department.
(c) Reinstate access by union representatives to the Hospi-
tal’s properties and facilities to the extent permitted before
November 18, 2008.
(d) Within 14 days after service by the Region, post at its
Yuba City, California, and its Marysville, California facilities
copies of the attached notice marked “Appendix.”5 Copies of

5 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.”
the notice, on forms provided by the Regional Director for Re-
gion 20, after being signed by the Hospital’s authorized repre-
sentative, shall be posted by the Hospital immediately upon
receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Hospi-
tal to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of
these proceedings, the Hospital has gone out of business or
closed the facilities involved in these proceedings, the Hospital
shall duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees employed
by the Hospital at any time since November 14, 2008.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps the
Hospital has taken to comply.
Dated, Washington, D.C. April 28, 2009
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to recognize and bargain in good faith
with California Nurses Association, AFL–CIO as the exclusive
representative of our employees in the following appropriate
unit:
All full-time and regular part-time and per diem Registered
Nurses in positions requiring a Registered Nurse (RN) license
and who provide direct patient care and are employed by us at
and out of Fremont Medical Center located at 970 Plumas
Street, Yuba City, CA and/or Rideout Memorial Hospital lo-
cated at 726 Fourth Street, Marysville, California; excluding
all non-professional employees, non-Registered Nurses, Trav-
eler Registered Nurses, Registry Registered Nurses, Care Co-
ordinators (discharge planning), Physician’s Assistants (PAs),
RN Clinical Systems Analysts, RN Program Coordinators in
Cardiac Rehab, RN Focus Review Patient Account Nurse
Auditors, RN Focus Review Medical Records Analysts, ICU
Outcome Coordinators, RN Education Coordinators, Clinical
Nurse Specialists, Infection Control Nurses, RN midwives,
managerial employees, confidential employees, guards and
supervisors as defined in the Act.
FREMONT MEDICAL CENTER & RIDEOUT MEMORIAL HOSPITAL 13
WE WILL NOT unilaterally grant wage increases, reduce con-
tributions for health premiums, waive health insurance deducti-
bles, match a certain percentage of employee contributions to
their 403(b) plans, cash out paid time off up to 80 hours per
calendar year, or other terms and conditions of employment
without notifying the Union and giving it an opportunity to
bargain about these changes.
WE WILL NOT prohibit union representatives from accessing
our property.
WE WILL NOT implement new emergency department proto-
cols, reinstate a rapid medical evaluation process, or add an
intake nurse assignment in the emergency department without
bargaining with the Union about the effects of such changes.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL recognize and, on request, bargain collectively with
the Union as the exclusive representative of our employees in
the above unit with respect to wages, hours, and other terms
and conditions of employment, and, if an agreement is reached,
embody it in a signed document.
WE WILL, on the Union’s request, cancel and/or rescind the
wage increases, reduced contributions for health premiums,
waiver of health insurance deductibles, matching a certain per-
centage of employee contributions to 403(b) plans, cashing out
paid time off up to 80 hours per calendar year, and WE WILL,
upon request of the Union, bargain with the Union about the
effects of our having implemented new emergency department
protocols, reinstating a rapid medical evaluation process, and
adding an intake nurse assignment in the emergency depart-
ment.
WE WILL reinstate our past practice of allowing union repre-
sentatives to access our property.
THE FREMONT-RIDEOUT HEALTH GROUP D/B/A
FREMONT MEDICAL CENTER AND RIDEOUT MEMORIAL
HOSPITAL