Hospital of Barstow Inc., d/b/a Barstow Community Hospital

National Labor Relations Board - Board Decisions

Aug 29, 2014

361 N.L.R.B. 352 (N.L.R.B. 2014)

352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hospital of Barstow, Inc. d/b/a Barstow Community
Hospital and California Nurses Associa-
tion/National Nurses Organizing Committee
(CNA/NNOC), AFL–CIO. Cases 31–CA–090049
and 31–CA–096140
August 29, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On September 9, 2013, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respond-
ent, the General Counsel, and the Union each filed ex-
ceptions, a supporting brief, an answering brief, and a
reply brief.1
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,2 and conclusions3
only to the extent consistent with this Decision and Or-
der, to amend his remedy, and to adopt his recommended
Order as modified and set forth in full below.4
1 Subsequently, the Respondent filed a letter calling the Board’s at-
tention to recently issued case authority, and the General Counsel filed
a letter in response. Pursuant to Reliant Energy, 339 NLRB 66 (2003),
we have accepted both submissions.
2 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 his decision, the judge inadvertently stated that the Respondent
contends that the “merger” of the Union with the National Union of
Healthcare Workers (NUHW) created discontinuity of representation
privileging a refusal to bargain, when in fact the Respondent’s conten-
tion was based on the “affiliation” of the Union with the NUHW. This
error does not affect our disposition of this case.
3 We adopt the judge’s finding that deferral to arbitration under Col-
lyer Insulated Wire, 192 NLRB 837 (1971), is not appropriate here.
The parties have no collective-bargaining agreement setting forth an
agreed-upon grievance-arbitration procedure. See, e.g., Arizona Port-
land Cement Co., 281 NLRB 304, 304 fn. 2 (1986). In addition, defer-
ral is generally inappropriate where the parties have not had “a long and
productive collective-bargaining relationship.” United Technologies
Corp., 268 NLRB 557, 558 (1984). Here, as the judge properly found,
the relationship was neither long nor productive. See San Juan Bau-
tista Medical Center, 356 NLRB 736, 737 (2011), and cases cited there.
In adopting the judge’s finding, Member Johnson relies on the Fed-
eral Arbitration Act’s requirement that agreements to arbitrate must be
in writing. 9 U.S.C. § 2.
4 We shall modify the judge’ recommended remedy and Order to re-
flect our award of negotiation expenses, as explained below.
We shall also modify the judge’s conclusions of law, remedy, and
Order to reflect the finding of an additional violation, as explained
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
submit any proposals or counterproposals until it re-
ceived the Union’s entire contract proposal. See, e.g.,
Fallbrook Hospital, 360 NLRB 644, 644 (2014); Ardsley
Bus Corp., 357 NLRB 1009, 1011 (2011). We also
adopt the judge’s finding that the Respondent violated
Section 8(a)(5) and (1) of the Act by declaring impasse
and refusing to bargain unless the Union directed unit
employees to stop using the union-provided assignment
despite objection (ADO) form to document circumstanc-
es that they believed were unsafe for patients or could
jeopardize their nursing licenses.5
The General Counsel excepts to the judge’s failure to
find that the Respondent unilaterally changed its certifi-
cation training policy by (1) requiring that the nurses
utilize an online training program known as
below. We shall further modify the Order to conform to our standard
remedial language and to substitute July 26, 2012, the date of the Re-
spondent's first unfair labor practice, for purposes of the contingent
notice mailing obligation pursuant to Excel Container, Inc., 325 NLRB
17 (1997). In addition, we shall substitute a new notice to conform to
the Order as modified and in accordance with our decisions in J. Picini
Flooring, 356 NLRB 11 (2010), and Durham School Services, 360
NLRB 694 (2014).
Although the Respondent excepts in blanket fashion “to the entirety”
of the judge’s recommended Order, it neither excepts to nor argues the
propriety of the judge’s recommended affirmative bargaining order for
the violations found. We therefore find it unnecessary to furnish a
specific justification for that remedy. SKC Electric, Inc., 350 NLRB
857, 862 fn. 15 (2007) (citing Scepter v. NLRB, 280 F.3d 1053, 1057
(D.C. Cir. 2002) (“a generalized exception to a remedial order is insuf-
ficiently specific to preserve a particular objection for appeal,” and in
the absence of particular exceptions the Board may issue an affirmative
bargaining order without stating a rationale)).
5 As the judge found, neither party submitted any proposals, nor did
the parties bargain, about the ADO form. Accordingly, the Respond-
ent’s declaration of impasse over this subject and its concurrent refusal
to bargain were unlawful, irrespective of whether the ADO form consti-
tutes a mandatory or permissive subject of bargaining. We find it un-
necessary to pass on the judge’s finding that the ADO form is a permis-
sive subject.
We reject the Respondent’s belated contention that it had no bar-
gaining 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
negotiations with the Union. Nursing Center at Vineland, 318 NLRB
901, 904 (1995) (citing Technicolor Government Services, Inc. v.
NLRB, 739 F.2d 323, 326–327 (8th Cir. 1984)). For the reasons stated
in Ardit Co., 360 NLRB 54 (2013), we find no merit in the Respond-
ent’s contention that the Acting General Counsel lacked the authority to
prosecute this case.
As in Fallbrook Hospital, supra, 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 unlaw-
ful refusal to bargain.
361 NLRB No. 34

BARSTOW COMMUNITY HOSPITAL 353
“HeartCode,” and (2) failing to pay the nurses in full for
the time spent to complete the HeartCode training. We
find merit in the General Counsel’s exception for the
reasons explained below.
Facts
The Respondent requires its registered nurses to be
certified in basic life support, advanced cardiac life sup-
port, and pediatric life support, and to renew those certi-
fications every 2 years by completing requisite training
classes. For several years, the Respondent offered in-
structor led certification training at its facility and paid
employees in full for the time spent in those training ses-
sions. For example, in April 2012, RN Mary Moon re-
newed her certification in pediatric life support through
onsite instructor led training and the Respondent com-
pensated her for the 7 hours she spent taking the training.
The Respondent did not set a maximum number of train-
ing hours for which employees could be paid. Alterna-
tively, the Respondent allowed employees to take the
training classes at any American Heart Association ap-
proved facility, but it did not pay them for the time spent
in those offsite sessions.
In early 2012,6 the Union commenced an organizing
campaign at the Respondent’s facility and, on May 10,
won an election to represent the Respondent’s registered
nurses. Afterwards, the Respondent began offering certi-
fication training through HeartCode, a self-directed
online program, and capped the number of paid hours for
completing the HeartCode training at 2 hours for basic
life support, and 6 hours each for advanced cardiac life
support and for pediatric life support. Throughout June
and July, the Respondent continued to offer onsite, in-
structor led training sessions. On June 29, the Regional
Director certified the Union as the exclusive bargaining
representative of the Respondent’s registered nurses.
Soon thereafter, the Union and the Respondent began
collective-bargaining negotiations.
On August 2, the Respondent’s board of trustees
signed and implemented the HeartCode policy, which
stated that “effective August 2, 2012, HeartCode replaces
instructor-led classes.” The Respondent announced the
new HeartCode policy to employees during meetings and
by posting flyers on its bulletin boards.
Later that month, the Union learned from unit employ-
ees that the Respondent had implemented the HeartCode
policy. The Union requested information from the Re-
spondent regarding the policy. In response to the nurses’
expressed concern that the new policy would no longer
allow them to take offsite, instructor led training, the
Union submitted a bargaining proposal to allow the nurs-
6 All dates are in 2012 unless stated otherwise.
es to obtain their certifications through offsite, instructor
led training at any American Heart Association approved
facility, as before. The Respondent did not respond to
either the request for information or the bargaining pro-
posal.
Among the nurses who completed HeartCode training
since August 2, four exceeded the maximum number of
paid hours. Consistent with the HeartCode policy, the
Respondent did not pay those nurses for the additional
hours.7
At the hearing, the General Counsel argued that the
Respondent violated Section 8(a)(5) and (1) of the Act
by implementing the changes to its certification training
policy. The judge observed that the Union learned about
the policy change in the last week of August, but stated,
without elaboration, that the Respondent had “made the-
se changes in April, prior to the Union’s election as bar-
gaining representative.”
Discussion
Employee training and remuneration for time spent in
required training relate to employees’ wages, hours, and
other terms and conditions of employment, and therefore
constitute mandatory subjects of collective bargaining.
See Southern California Gas Co., 346 NLRB 449, 449
(2006). A unilateral change with regard to a mandatory
subject of bargaining violates Section 8(a)(5) and (1) of
the Act if the change is “material, substantial, and signif-
icant.” Flambeau Airmold Corp., 334 NLRB 165, 165
(2001), modified on other grounds 337 NLRB 1025
(2002); see generally NLRB v. Katz, 369 U.S. 736
(1962). The Respondent does not dispute that it imple-
mented the HeartCode policy unilaterally. Rather, it ar-
gues that (1) it introduced the HeartCode program to
employees before the election and therefore before the
Respondent had an obligation to bargain, and (2) the re-
placement of onsite, instructor led training with
HeartCode training was not a material, substantial, or
significant change. We reject both arguments.
To begin, we find that the Respondent implemented
the HeartCode policy on August 2. The Respondent as-
serts that it held an information session for managers
about HeartCode in April, before the May 10 election.
But the evidence suggests that this meeting was held to
give managers a preview of the HeartCode program that
the Respondent was then considering. In light of the
testimony of Chief Quality Officer and Facility Compli-
ance Officer Diana Sheriff that no hospital policy be-
came effective until approved by the board of trustees,
7 On May 31, 2013, 2 weeks before the scheduled unfair labor prac-
tice hearing, the Respondent paid the four nurses for this previously
unpaid time.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
we find that the policy was not actually adopted or im-
plemented as a replacement for onsite, instructor led
training until August 2. We reject the Respondent’s con-
tention that it replaced onsite, instructor led training with
HeartCode in April. First, the Respondent failed to offer
any evidence that HeartCode training even became avail-
able to employees in April. As the Respondent’s own
witnesses acknowledged, it was not until June 8 when the
first employee began HeartCode training.8 In any event,
the Respondent continued to offer the alternative of on-
site, instructor led training well after the May 10 elec-
tion.
We further find no merit in the Respondent’s claim
that the change was not material, substantial, or signifi-
cant. The Respondent replaced onsite, instructor led
training with the HeartCode online training and limited
the number of paid hours for taking that training. Four
employees who completed HeartCode training after Au-
gust 2 were not paid for training time that exceeded the
maximum number of hours designated in the HeartCode
policy.9 This was a departure from the Respondent’s
practice of paying its employees in full for the time spent
taking the onsite, instructor led certification training.10
Board law is clear that changes affecting employees’
compensation and benefits are material, substantial, and
significant. See, e.g., Rangaire Co., 309 NLRB 1043,
1043 (1992) (an extra 15 minutes of paid lunchbreak
once per year); Beverly Enterprises, 310 NLRB 222, 239
(1993) (free coffee), enfd. in pertinent part 17 F.3d 580
(2d Cir. 1994). The fact that only four employees were
shown to have failed to complete the HeartCode training
within the allocated time, and therefore did not timely
8 To support its argument that it introduced the HeartCode program
to employees before the election, the Respondent also contends that it
created a HeartCode fact sheet and distributed it to employees in April.
This contention is contradicted by the testimony of the Respondent’s
director of staff education, Terry Jackson, that she created the fact sheet
“after April”; it is also contradicted by the fact sheet itself, which states
that HeartCode “was initiated in May.” The use of the past tense sug-
gests the likelihood of an even later initiation date.
9 We reject the Respondent’s contention that its failure to pay the
four unit employees was an inadvertent error. The Respondent present-
ed no evidence to support that claim. Moreover, the claim is contra-
dicted by the clear language of the HeartCode policy revision (GC Exh.
23) expressly reaffirming reimbursement maximums, and by the specif-
ic testimony of Director Jackson that employees were not to be paid for
training time spent in excess of maximums set by the HeartCode policy
10 We find that the General Counsel failed to establish that the Re-
spondent changed its practice of allowing unit employees to obtain
certifications through offsite instructor led training. Although the Re-
spondent’s August 2 HeartCode policy states that “HeartCode replaces
instructor-led classes,” it does not specifically state that HeartCode
replaces offsite instructor led classes. The General Counsel presented
no evidence that the Respondent directed unit employees not to take
offsite training or rejected the certifications they obtained through
offsite training.
receive reimbursement for excess time taken, does not
make the change insubstantial. See, e.g., Ivy Steel &
Wire, 346 NLRB 404, 419 (2006) (“The fact that the
unilateral change . . . may have affected only one unit
employee, and not other members of the bargaining unit,
does [not] render the change inconsequential or insub-
stantial.”).
In addition, changes that impair employee choice or
discretion related to employment benefits are material,
substantial, and significant. See Caterpillar, Inc., 355
NLRB 521, 523 (2010); Flambeau Airmold Corp., 334
NLRB at 166. Here, the Respondent discontinued the
onsite, instructor led training that some of its employees
preferred and replaced it with a computerized program.11
In sum, we find that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally implementing
the HeartCode policy to replace its onsite, instructor led
training with the online program, and by limiting the
number of hours that employees were paid for complet-
ing the program.
AMENDED CONCLUSIONS OF LAW
Insert the following paragraph and renumber the sub-
sequent paragraph.
“5. The Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally implementing its HeartCode
policy to replace onsite, instructor led training with the
online training program, and by limiting the number of
hours that employees could be paid for completing the
program.”
AMENDED REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by implementing the
HeartCode policy without affording the Union prior no-
tice and an opportunity to bargain, we shall order the
Respondent to cease and desist, to give the Union notice
11 We disagree with our colleague that this change was not material,
substantial, and significant. Onsite, instructor led training and online,
self directed computer training are significantly different formats and
their effectiveness will vary depending on the learning styles of indi-
vidual employees. For example, RN Mark Ziemerman testified that
HeartCode training requires computer skills beyond those normally
required in the workplace and that even he, a former onsite training
instructor, had difficulty completing the HeartCode training.
Member Johnson would not find that the General Counsel has prov-
en the substitution of a computerized training program for live instruc-
tor led training, without more, constituted a material, substantial, and
significant change triggering the statutory duty to bargain. This is no
difference in impact upon employees, in essence, than simply switching
individual instructors, with different teaching styles and different teach-
ing foci. That kind of minutiae is not properly characterized as a
change that triggers bargaining. He would therefore find that the Re-
spondent violated Sec. 8(a)(5) by unilaterally implementing the
HeartCode policy because it included the reimbursement limitation.

BARSTOW COMMUNITY HOSPITAL 355
and an opportunity to bargain prior to implementing any
unilateral changes, and, upon request by the Union, to
rescind the HeartCode policy and restore the status quo
ante. In addition, we shall order the Respondent to make
whole affected employees for any loss of wages and oth-
er benefits they may have suffered as a result of the Re-
spondent’s unlawful unilateral changes. The make-
whole remedy shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). Fur-
ther, we shall order the Respondent to compensate af-
fected employees for any adverse tax consequences of
receiving a lump-sum backpay award and file a report
with the Social Security Administration allocating the
backpay award to the appropriate calendar quarters for
each employee. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014).
The Union has requested three additional remedies: (1)
a public notice reading, (2) an award of its litigation ex-
penses, and (3) an award of its negotiation expenses. We
find that the Union has not demonstrated that a notice
reading is needed to remedy the effects of the Respond-
ent’s unfair labor practices. See Alstyle Apparel, 351
NLRB 1287, 1288 (2007). We also reject the Union’s
request for litigation expenses because the defenses
raised by the Respondent, although without merit, were
not entirely 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).
However, having considered the evidence of the Re-
spondent’s approach to collective bargaining, we find
that an award of negotiation expenses is necessary to
remedy the detrimental effect the Respondent’s unlawful
conduct has had on the bargaining process. In Frontier
Hotel & Casino, 318 NLRB 857, 859 (1995), enfd. in
relevant part sub nom. Unbelievable, Inc. v. NLRB, 118
F.3d 795 (D.C. Cir. 1997), the Board set forth the stand-
ard for determining whether negotiation expenses should
be awarded: “In cases of unusually aggravated miscon-
duct . . . 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 traditional
remedies will not eliminate their effects, an award of
negotiation expenses is warranted 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.” The Board emphasized
that this standard “reflects the direct causal relationship
between the respondent’s actions in bargaining and the
charging party’s losses.” Id.
In the present case, the record shows that the Respond-
ent deliberately acted to prevent any meaningful progress
during bargaining sessions. For example, the Respond-
ent refused to provide any proposals or counterproposals
during the first five bargaining sessions until it received a
full set of proposals from the Union. Only after the Un-
ion satisfied the Respondent’s unlawful demand for a full
contract proposal did the Respondent proffer some pro-
posals during the next three bargaining sessions, which
occurred between October 17 and November 29. At the
next bargaining session, on December 28, however, the
Respondent threatened to stop bargaining if the Union
persisted in encouraging employees’ use of the Union’s
ADO form. At a mediated bargaining session on January
11, 2013, the Respondent refused to bargain further, er-
roneously claiming that the use of the ADO forms caused
the parties to be at impasse. Thereafter, the Respondent
adamantly and repeatedly refused to respond to the Un-
ion’s requests for future bargaining dates, despite the
Union’s open invitation to discuss any matter, including
the ADO forms.
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 application of our
traditional remedy of an affirmative bargaining order. In
reaching that conclusion, we rely on the record evidence
that the Respondent, by deliberately bargaining in bad
faith, directly caused the Union to waste its resources in
futile bargaining. See, e.g., Camelot Terrace, 357 NLRB
1934, 1937 (2011) (awarding negotiation costs based on
a direct causal relationship between employer’s actions
in bargaining and the charging party’s losses); Regency
Service Carts, 345 NLRB 671, 676 (2005) (same). See
also Fallbrook Hospital, 360 NLRB 644, 645–646
(2014).12 In addition, we note that the Respondent’s
deliberate refusal to bargain in good faith occurred in the
critical postelection period when the Union, as a newly
certified collective-bargaining representative, was highly
susceptible to unfair labor practices tending to undermine
the employees’ support for the Union. See, e.g., Ahearn
v. Jackson Hospital Corp., 351 F.3d 226, 239 (6th Cir.
2003); Arlook v. S. Lichtenberg & Co., 952 F.2d 367,
373 (11th Cir. 1992). In these circumstances, reim-
bursement of the Union’s negotiation costs is necessary
12 In Fallbrook, as here, the Board awarded negotiation costs to the
union because the respondent refused to provide proposals or counter-
proposals for eight sessions, until the union had presented its full set of
proposals; threatened to cease bargaining if the union persisted in en-
couraging employees to use its ADO form; and repeatedly refused to
respond to the union’s request for future bargaining dates.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
to make the Union whole and to ensure a return to the
status quo at the bargaining table.13
Accordingly, we shall order the Respondent to reim-
burse the Union for the expenses it incurred for the col-
lective-bargaining negotiations held from July 26, 2012,
through January 11, 2013. 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).
ORDER
The National Labor Relations Board orders that the
Respondent, Hospital of Barstow, Inc., d/b/a Barstow
Community Hospital, Barstow, 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.
13 We reject the Respondent’s argument that an award of negotiation
expenses is unwarranted here because its conduct was not as egregious
as that of employers in Frontier Hotel & Casino, supra, and Harowe
Servo Controls, 250 NLRB 958 (1980), where the Board awarded
negotiation expenses. Although the Board in Frontier Hotel & Casino
expressed its intention to “rely[] on bargaining orders to remedy the
vast majority of bad-faith bargaining violations[,]” 318 NLRB at 859, it
did not set the bar for an award of negotiating expenses at the level of
the misconduct in that case. Nor did the Board in Harowe Servo Con-
trols set some threshold level of egregiousness that must be satisfied in
order to conclude that an employer’s conduct infected the core of the
bargaining process. Rather, our decisions, including those in Frontier
Hotel & Casino and Harowe Servo Controls, make clear that, in deter-
mining whether to award negotiating expenses, we will consider each
case on its own merits, evaluating the effect of the violation on the
wronged party and the injury to the collective-bargaining process.
As in Fallbrook, which involved a very similar pattern of bargain-
ing, Member Johnson would find that an award of negotiation 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 did the misconduct of the respondent in
Frontier Hotel & Casino, supra, and he would only extend the certifica-
tion year bargaining requirement by 6 months, rather than the full year
extension recommended by the judge and adopted by his colleagues.
(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.
(c) Refusing to bargain collectively with the Union by
prematurely declaring impasse and refusing to bargain
unless the Union stopped using the assignment despite
objection form.
(d) Changing terms and conditions of employment of
unit employees without first notifying the Union and
giving it an opportunity to bargain.
(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
555 South Seventh Avenue, Barstow, California; ex-
cluding 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 defined in the Act.

(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and on request, bargain with the Union.
(c) At the Union’s request, rescind the August 2, 2012
HeartCode policy, which replaced the onsite, instructor
led training with the online training, and restore the re-
imbursement benefits for certification training that exist-
ed before the unlawful changes.
(d) Make all affected unit employees whole for any
losses suffered as a result of the unlawful changes, in the
manner set forth in the amended remedy section of this
decision.
(e) Compensate the affected employees for any ad-
verse tax consequences of receiving a lump-sum backpay
award, and file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters for each employee.

BARSTOW COMMUNITY HOSPITAL 357
(f) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Reimburse the Union for the expenses it incurred
for the collective-bargaining negotiations held from July
26, 2012, through January 11, 2013.
(h) Within 14 days after service by the Region, post at
its Barstow, California facility copies of the attached
notice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
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 26, 2012.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 31 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the certification of the
Union issued by the Board on June 29, 2012, is extended
for a period of 1 year commencing from the date on
14 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.”
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 failing and refusing to submit any proposals or
counterproposals until the Union submits all of its con-
tract proposals.
WE WILL NOT refuse to bargain collectively with the
Union by prematurely declaring impasse and refusing to
bargain unless the Union stops using the assignment de-
spite objection form.
WE WILL NOT change terms and conditions of your
employment without first notifying the Union and giving
it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL 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 555 South
Seventh Avenue, Barstow, California; excluding all
other employees, managers, confidential employees,
physicians, employees of outside registries and other
agencies supplying labor to us, already represented

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
employees, guards and supervisors as defined in the
Act.

WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and on request, bargain with the Union.
WE WILL, at the Union’s request, rescind the August 2,
2012 HeartCode policy, which replaced the onsite, in-
structor led training with online training, and restore the
reimbursement benefits for certification training that ex-
isted before our unlawful changes.
WE WILL make all affected unit employees whole, with
interest, for any losses suffered by them as a result of our
unlawful unilateral changes.
WE WILL compensate all unit employees adversely af-
fected for any adverse tax consequences of receiving a
lump-sum backpay award, and WE WILL file a report with
the Social Security Administration allocating the back-
pay award to the appropriate calendar quarters for each
employee.
WE WILL reimburse the Union for the expenses it in-
curred for the collective-bargaining negotiations held
from July 26, 2012, through January 11, 2013.
HOSPITAL OF BARSTOW, INC. D/B/A
BARSTOW COMMUNITY HOSPITAL

The Board’s decision can be found at
www.nlrb.gov/case/31–CA–090049 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

Juan Carlos Gonzalez, Esq., for the General Counsel.
Don T. Carmody Esq, and Carmen M. DiRienzo, Esq., for the
Respondent.
Micah Berul, Nicole Daro and M. Jane Lawhon, Esqs. for the
Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Barstow, California, on June 18–20, 2013, and at
San Francisco, California, on June 27, 2013. On September 26,
2012, California Nurses Association/National Nurses Organiz-
ing Committee (CNA/NNOC), AFL–CIO (the Union) filed the
charge in Case 31–CA–090049 alleging that Hospital of
Barstow, Inc., d/b/a Barstow Community Hospital (Respond-
ent) committed certain violations of Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act). On October 19,
2012, the charge was amended. On December 27, 2012, the
Acting Regional Director for Region 31 of the National Labor
Relations Board (the Board) issued a complaint and notice of
hearing against Respondent, alleging that Respondent violated
Section 8(a)(5) and (1) of the Act. Respondent filed a timely
answer to the complaint, denying all wrongdoing.
On January 10, 2013, the Union filed the charge in Case 31–
CA–096140 against Respondent. On April 30, 2013, the Re-
gional Director issued a consolidated complaint against Re-
spondent. Respondent filed a timely answer to the complaint,
denying all wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses, and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation, with an office and principal
place of business in Barstow, California, has been engaged in
the operation of a hospital providing medical care. In the 12
months prior to the issuance of the complaint, Respondent, in
conducting its business operations, derived gross revenues in
excess of $250,000. Further, Respondent received goods and
services valued in excess of $5000 directly from points outside
the State of California. Accordingly, Respondent admits and I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent operates an acute care hospital in Barstow, Cali-
fornia. The Union was certified to represent the following bar-
gaining unit on June 29, 2012

All full time, and part-time, and per diem Registered Nurses,
including those who serve as relief charge nurses, employed
by the Respondent at its 555 South Seventh Avenue, Barstow,
California facility; excluding all other employees, managers,
confidential employees, physicians, employees of outside reg-
istries, and other agencies supplying labor to the Respondent,
already represented employees, guards and supervisors as de-
fined in the Act, as amended.

Respondent has a policy entitled “Event and Government
Reporting” which ensures policies are in place to improve pa-
tient care and safety. Pursuant to that policy, employees are
instructed to fill out an event report form, also referred to as an
incident report, if something noteworthy occurs on their shift.
Employees are trained on the policy and the event reporting
system.
BARSTOW COMMUNITY HOSPITAL 359
If a nurse believes staffing is inadequate, pursuant to the
event and government reporting policy, he or she is to raise the
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. Respondent’s
event report form cannot be discovered in a medical malprac-
tice suit or by the public.
The Union has created an “assignment despite objection”
(ADO) form upon which nurses can document assignments or
situations they feel are not safe for the patient or may compro-
mise the nurse’s license. The Union provided the form to Re-
spondent’s nurses shortly after the election. Before filling out
the ADO form, the nurse must first verbally notify her supervi-
sor about the issue and give her a chance to address the issue.
Once filled out, the nurse gives a copy of the form to her man-
ager and a copy to the Union. There is a line on the form for
the supervisor’s response. The Union instructed the employees
to also follow Respondent’s policy. The ADO form is not pro-
tected from discovery.
Pursuant to an agreement prior to the Union’s certification,
the parties had agreed on some issues including retirement ben-
efits, union security and recognition. These provisions were
prenegotiated before the election as to what the parties would
agree to if the nurses selected the Union as their representative.
The parties never executed this preelection agreement. The
agreement also provided for arbitration of all disputes.
The parties first met for bargaining on July 16, 2012. The
meeting was introductory and took place at the hospital. The
Union was represented by Stephen Mathews and three bargain-
ing unit nurses. Respondent was represented by Don Carmody,
attorney, and hospital administrator Jan Ellis. Mathews submit-
ted an information request and the parties scheduled three dates
for bargaining. During this meeting, Carmody stated that the
Union needed to stop using the ADO forms. Mathews stated
that the nurses would follow the Respondent’s internal proce-
dure as well as filling out the ADO forms.
On July 26, 2012, the parties met for bargaining. The Union
presented its proposed contract with all its proposals except
wages. Carmody stated he would not give any proposals or
counter proposals until the Union provided all of its proposals.
Mathews responded that Respondent was required to bargain
and that its refusal to offer proposals or counterproposals was
bad-faith bargaining. Carmody responded that he had always
bargained in this manner and was not going to change. Re-
spondent did not offer any proposals or counterproposals.
On August 1, the parties again met for bargaining. Pursuant
to the precertification unsigned agreement, the parties tentative-
ly agreed to articles of the Union’s proposed contract regarding
recognition, union security and retirement benefits. Carmody
again stated that he would make no proposals or counterpro-
posals until the Union submitted all its proposals including its
wage proposal. Mathews responded that Carmody was not
bargaining in good faith. Carmody ended the meeting stating
that he would make no responses until he obtained all of the
Union’s proposals.
On August 15, the parties again met for bargaining. The par-
ties discussed the union information requests. Mathews pre-
sented a document to show that ADO forms were used at the
hospital in Watsonville, California. Carmody responded that it
did not matter what occurred at other hospitals, Respondent
would not accept the ADO forms. The meeting ended with
Carmody refusing to make proposals or counterproposals until
he received the Union’s wage proposal.
During the last week of August, the Union learned that Re-
spondent had changed its policy on how nurses could obtain
training for their required certifications in basic life support,
advanced cardiac life support, and pediatric advance life sup-
port which must be renewed every 2 years. In fact, Respondent
had made these changes in April, prior to the Union’s election
as bargaining representative.
On September 13, the parties again met for bargaining. The
Union submitted a proposal to allow nurses to obtain their certi-
fication at any American Heart Association approved facility.
Carmody said he was unable to contact Respondent’s officials
for an answer. Mathews asked for proposals or counterpro-
posals. Carmody again responded that he would make no pro-
posals or counterproposals until he had the Union’s full con-
tract proposal.
On September 26, the Union submitted its wage proposal to
Jan Ellis. Carmody was not able to be present for this meeting.
Ellis accepted the Union’s proposal but stated that she had no
authority to bargain at that time. Mathews stated that the Union
wanted proposals or counterproposals. Ellis stated that she was
there only to receive the wage proposal.
The parties next met on October 17, Mathews again request-
ed proposals and counterproposals. Carmody discussed the
Union’s proposals for approximately 2 hours. Carmody said he
would provide written counterproposals on a number of articles
“at some point.” Later that day, Carmody emailed to Mathews
a grievance and arbitration proposal and a no strike/no lockout
proposal.
Mathews opened the November 8 session by requesting Re-
spondent to make proposals and counterproposals. Respondent
caucused and then returned with four written proposals on post-
ing and filling vacancies, sick leave, vacations, and weekend
rotation.
After a second caucus, Carmody offered four counterpro-
posals on discharge and discipline, in-service and education,
probation, and personnel records and evaluation. After a third
caucus, Carmody presented three proposals on hours of work
and overtime, holidays, and employee classifications. After a
fourth caucus, Carmody offered two proposals covering non-
discrimination and contract duration, and later provided pro-
posals on management rights and the preamble, Carmody end-
ed the meeting by stating he would offer six more written pro-
posals at the next session.
At a bargaining session on November 14, the parties bar-
gained about severability and employee classifications. They
also bargained about hours of work and overtime, weekend
rotations, and posting and filling vacancies.
On November 29, the parties negotiated over leaves of ab-
sence and evaluations and warnings. The parties also negotiat-
ed over nondiscrimination, preamble, severability, and general
provisions. Carmody proposed the next session be scheduled
for January and the Union objected. The parties finally agreed
to meet on December 28.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
At the December 28 meeting, the Union requested infor-
mation about the pension plan and the parties discussed that
subject. Carmody stated that the parties were at impasse over
the use of the ADO forms. Mathews insisted that the parties
were not at impasse. Carmody stated that the parties were at
impasse on the ADO form and therefore were at impasse over
every issue.
Carmody stated that the parties needed a mediator. Mathews
denied the parties were at impasse but said he would not oppose
mediation.
On December 28 and 31, Mathews sent Carmody emails
stating that the parties were not at impasse and that the Union
was willing to bargain over the issue of the ADO forms.
Mathews stated that while there was no impasse, the Union
would agree to the assistance of a federal mediator.
On January 11, 2013, the parties met with a federal mediator.
The mediator shuttled back and forth between the parties who
were in separate rooms. The mediator told the union side that
Carmody took the position that the parties were at impasse over
the use of the ADO forms and, therefore, were at impasse over
everything. Mathews insisted the parties were not an impasse.
On January 14, 16, and 21, 2013, Mathews sent emails to
Carmody requesting bargaining. However, Carmody did not
respond. The parties did not meet again after the session with
the federal mediator.
Respondent’s Defense
Respondent claims the existence of “an ad hoc” agreement
between the Union and Respondent’s parent corporation that
requires all disputes be submitted to mandatory arbitration.
Thus, Respondent argues that this case should be deferred to
arbitration. Further, Respondent contends that the parties were
at impasse when it refused to bargain. Respondent contends
that it could lawfully request a full contract proposal before
offering proposals of its own. Respondent further contends that
the merger of the Union with the National Union of Healthcare
Workers created discontinuity of representation privileging a
refusal to bargain.
III. ANALYSIS AND CONCLUSIONS
A. The Respondent Was Obligated to Bargain
Section 8(a)(5) and 8(d) of the Act obligates parties to “con-
fer in good faith with respect to wages, hours and other terms
and conditions of employment.” NLRB v. Wooster Division of
Borg-Warner Corp., 356 U.S. 342, 344 (1958). The good-faith
requirement means that a party may not “negotiate” with a
closed mind or decline to negotiate on a mandatory subject with
a closed mind or decline to negotiate on a mandatory bargain-
ing subject. “While Congress did not compel agreement be-
tween employers and bargaining representatives, it did require
collective bargaining 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 does not establish or
equate with good-faith bargaining. NLRB v. American National
Insurance Co., 343 U.S. 395, 404 (1952). The Board will con-
sider the “totality of the conduct” in assessing whether bargain-
ing was done in good faith. NLRB v. Suffield Academy, 322
F.2d 196 (2d Cir. 2003).
During the bargaining from July to October, Carmody re-
fused to offer proposals or counterproposals until the Union
supplemented its bargaining proposals with its economic pro-
posals. In MRA Associates, Inc., 245 NLRB 676, 677 (1979),
the Board found that the failure to submit any proposals over
the course of three bargaining sessions was evidence of “basic
intransigence” on the employer’s part designed to undermine
the union’s efforts to negotiate a contract. In NLRB v. Arkansas
Rice Growers Co-Op Assn., 400 F.2d 565, 568 (8th Cir. 1968),
the court found that the single refusal to offer a counterproposal
to the union’s proposal regarding dues collection was not a per
se violation. The court enforced the Board’s order stating in
relevant part, “Although as the Company suggests, it may not
be bound to make counter proposals, nevertheless, evidence of
its failure to do so may be weighed with all other circumstances
in considering good faith.”
Respondent refused to bargain unless the Union agreed to
stop using the ADO forms. Respondent declared impasse over
the Union’s use of the ADO forms. The Union made no pro-
posals for use of the ADO forms and denied an impasse exist-
ed. The Union expressed a willingness to bargain over the
form or patient safety issues. The Union never instructed nurs-
es to bypass the Respondent’s procedures. Rather the Union
instructed the nurses to follow Respondent’s policies in addi-
tion to using the ADO forms. In none of the bargaining ses-
sions, did either party make a proposal regarding the use of
ADO forms, nor did they bargain over them.
The Board considers negotiations to be in progress, and thus
will find no genuine impasse to exist, until the parties are war-
ranted in assuming that further bargaining would be futile or
that there is “no realistic possibility that continuation of discus-
sion. . . . would be fruitful.” Saint-Gobain Abrasives, Inc., 343
NLRB 542, 556 (2004).
The existence of impasse is a factual determination that de-
pends on a variety of factors, including the contemporaneous
understanding of the parties as to the state of negotiations, the
good faith of the parties, the importance of the disputed issues,
the parties’ bargaining history, and the length of their negotia-
tions. Taft Broadcasting Co., 163 NLRB 475, 478 (1967).
Section 8(a)(5) prohibits a party’s insistence upon a permis-
sible subject as a condition precedent to entering an agreement
and precludes a good-faith impasse. Borg-Warner Corp., 356
U.S. 342 at 347–349 (1958). Here, the Union continually of-
fered to bargain about the proposals of the parties, as well as
the ADO form. Respondent unlawfully refused to bargain un-
less the Union ceased using the ADO forms. While Respond-
ent could lawfully refuse to accept the ADO forms, it could not
condition bargaining on the Union’s abandonment of the ADO
forms.
In this case, the Union argued that the parties were not at im-
passe. It is not sufficient for a finding of impasse to simply
show that the employer had lost patience with the Union. Im-
passe requires a deadlock. As the Board stated in Powell Elec-
trical Mfg. Co., 287 NLRB 969, 973 (1987):
BARSTOW COMMUNITY HOSPITAL 361

That there was no impasse when the Company declared is not
to suggest that if the parties continued their sluggish bargain-
ing indefinitely there would have been agreement on a new
contract. Such a finding is not needed, nor could it be made
without extra-record speculation, to find on this record that
when the Company declared an impasse there was not one,
even as far apart as the parties were. They had most of their
work ahead of them, and judging by the opening sessions
clearly had different goals in mind for a contract. Whether
their differences ever would have been resolved cannot be
known; but that is the nature of the process. It is for the par-
ties through earnest, strenuous, tedious, frustrating and hard
bargaining to solve their mutual problem—getting a con-
tract—together, not to quit the table and take a separate path.

Accordingly, I find that the parties were not at impasse when
Respondent declared an impasse and refused to bargain unless
the Union ceased using ADO forms.
B. Affiliation with National Union of Healthcare Workers
The National Union of Healthcare Workers affiliated with
the Union effective January 1, 2013. Under the affiliation the
two unions provide support to each other but each remains
autonomous. The record shows that Union lent NUHW over $1
million per month from January through April 2013. There is
no evidence of any changes in the operations of the Union since
the merger.
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).
The only factor the Respondent can rely on is the change in
the Union’s finances. I find that Respondent has not met its
burden of proof on this issue. The affiliation has not changed
the Union’s leadership, the manner in which it represents em-
ployees, or its day-to-day operations. The Union operates as an
autonomous entity before and after the affiliation.
C. There is no Agreement to Arbitrate this Dispute
Respondent contends that the Board should defer to arbitra-
tion. The Board has found deferral appropriate in instances
where (1) the dispute arose within the confines of a long and
productive bargaining relationship; (2) there is no claim of
employer animosity to the employees’ exercise of protected
statutory rights; (3) the collective-bargaining agreement’s arbi-
tration 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).
Here the agreement to arbitrate was never signed by the par-
ties. There has been no collective-bargaining relationship be-
tween the parties. As there is no agreement between the par-
ties, I cannot find an arbitration clause or an agreement to arbi-
trate. Accordingly, I find deferral to arbitration to be inappro-
priate.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to offer proposals or counterproposals until the Union
offered a full contract proposal.
4. Respondent violated Section 8(a)(5) and (1) by declaring
impasse and refusing to bargain unless the Union ceased using
ADO forms.
5. Deferral to arbitration would be inappropriate in this case.
6. Respondent’s conduct above are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effectu-
ate the purposes and policies of the Act. Accordingly, I shall
order Respondent to resume collective bargaining with the
Union. I shall order that the certification year be construed as
beginning the date the Respondent begins to bargain in good
faith with the Union pursuant to Mar-Jac Poultry, 136 NLRB
785 (1962).
[Recommended order omitted from publication.]