MountainView Hospital

National Labor Relations Board - Administrative Judge Opinions

Jan 11, 2011

28-CA-023100 (N.L.R.B. Jan. 11, 2011)

JD(SF)-01-11
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SUNRISE MOUNTAINVIEW HOSPITAL, INC.
d/b/a MOUNTAINVIEW HOSPITAL
and Case 28–CA–23100
CALIFORNIA NURSES ASSOCIATION/
NATIONAL NURSES ORGANIZING
COMMITTEE (CNA/NNOC)
William F. LeMaster, Esq.,
for the General Counsel.
Holly Miller, Esq., California Nurses Association, Oakland, California,
for the Charging Party.
Paul R. Beshears, Esq. (Ford & Harrison, LLP), of Atlanta, Georgia,
for the Respondent.
DECISION
I. STATEMENT OF THE CASE
LANA PARKE, Administrative Law Judge. Pursuant to charges filed by California Nurses
Association/National Nurses Organizing Committee (CNA/NNOC) (the Union), the Regional
Director for Region 28 of the National Labor Relations Board (the Board) issued a complaint and
notice of hearing (the complaint) on September 24, 2010.1 The complaint alleges that Sunrise
MountainView Hospital, Inc. d/b/a MountainView Hospital (the Respondent) violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act). This matter was tried in Las
Vegas, Nevada, on November 2.
II. ISSUE
Did the Respondent violate Section 8(a)(5) and (1) of the Act by unilaterally changing
its practice and policy of surgical scheduling without affording the Union an
opportunity to bargain about the changes?

1 All dates herein are 2010 unless otherwise specified.
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III. JURISDICTION
At all material times the Respondent, a Nevada corporation, with an office and place of
business in Las Vegas, Nevada (the facility), has been engaged in the operation of an acute-
care hospital providing inpatient and outpatient medical care. During the 12-month period
ending July 14, the Respondent, in conducting its business operations derived gross revenues
in excess of $250,000 and purchased and received at the facility goods valued in excess of
$5000 directly from points outside the State of Nevada. I find that at all material times the
Respondent has been an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) and has been a health care institution within the meaning of Section 2(14) of the
Act. I find that the Union was a labor organization within the meaning of Section 2(5) of the Act.
IV. STATEMENT OF FACTS
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Charging Party, and the
Respondent, I find the following events occurred in the circumstances described below during
the period relevant to these proceedings. Unless otherwise explained, findings of fact herein
are based on party admissions, stipulations, and uncontroverted testimony.
A. Collective-Bargaining Background
On January 13 and 14, a representation election was conducted among the
classifications of employees set forth below (the unit), a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act. On January 22, the Union
was certified as the unit’s exclusive collective-bargaining representative. The unit comprised
approximately 420 registered nurses (RNs). At all times since January 14, based on Section
9(a) of the Act, the Union has been the following employees’ exclusive collective-bargaining
representative: All full-time, regular part-time, and VSP/Per Diem Registered Nurses employed
at the Employer’s facility at 3100 N. Tenaya Way, Las Vegas, Nevada.
Following certification, the Respondent and the Union entered into negotiations
over the terms of a collective-bargaining agreement to cover unit employees; negotiations
were ongoing at the time of the hearing.
B. The Respondent’s Relevant Policies and Practices
At all material times the following individuals held the positions set forth opposite their
respective names and have been supervisors of the Respondent within the meaning of Section
2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act:
JD Melchoide — Chief Operating Officer
Bob Nettles — Director of Human Resources
John Paul Draves — Director of Surgical Services
Approximately 26 registered nurses (RNs) work within the Pre and Post Care Unit
(PPCU) and the Surgical Services Department (the surgical department). The RNs prepare
patients for surgery and handle recovering patients in preparation for postsurgery
discharge. Since April 20, 2006, the Respondent has maintained written surgical scheduling
guidelines for surgical department RNs, which set forth the following policies:
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A. Definitions:
1. Elective Surgery: scheduled to be performed at a date in the future mutually
agreed upon by patient, physician & hospital.2
2. Urgent Surgery: surgical intervention should take place within a designated
time frame (i.e.: within 8 hrs. or within 6 days).
3. Emergency Surgery (Bump):3 a critical or life-threatening condition, which
requires surgical intervention as soon as preparations can be made
(immediate response).
. . . .
B. Operational Process:
1. Elective surgery will be performed daily Monday–Friday from 700 to
2300 and Saturday from 0700 to 1500. Sunday & Holidays, there will
be no elective surgery.4 Surgical & Anesthesia staff will be available
for urgent & emergency cases only. Administration in conjunction with
the Surgical Services Director will evaluate any exceptions to this
guideline.
During material times, the Respondent maintained a written Policy/Procedure
Statement HR10 dated May 9, 1999 (last revised August 8, 2007) that established New
Year’s Day, Memorial Day, 4th of July, Labor Day, Thanksgiving, and Christmas as
recognized holidays.
When New Year’s Day, the 4th of July, or Christmas fell on a Saturday or
Sunday, Respondent observed the respective holiday on the weekday closest to the
calendar holiday and called the designated day “the observed holiday.” In 2010, the 4th
of July fell on a Sunday. The Respondent’s observed holiday was Monday, July 5.
Prior to June 15, the Respondent had followed the practice of not scheduling elective
surgeries on Sundays and holidays, limiting surgical services to emergency and urgent
surgeries.5 For Sundays and holidays, the Respondent’s practice was to schedule two surgical
RNs to be available on an on-call basis for emergency surgeries.6

2 This definition of elective surgery considered only the scheduling time frame. An attending
physician had sole discretion to determine under what time constraints a surgery was to be
performed. The Respondent did not ask a physician to declare whether a surgery was
emergency, urgent, or elective when scheduling.
3 “Bump” refers to the understanding that a critical or life-threatening condition requiring
surgery would take precedence over or “bump” a less critical surgery.
4 The Respondent’s practice was to permit emergency and urgent surgeries, as defined
above, to be scheduled for Sundays and holidays.
5 Elective surgeries might occur on a holiday if, while a surgical team was already in place
for an emergency surgery, a surgeon received permission to perform an elective surgery.
6 The Respondent devised the holiday on-call list in advance to permit surgical RNs to
choose on-call status for designated holidays. The Respondent asserts that in 2009, when the
4th of July holiday fell on Saturday and was observed on Friday, July 3, the surgical department
accepted all cases. Although JD Melchoide testified that he discussed accepting all July 3,
2009 surgical cases with Mr. Draves’ predecessor, there is no evidence the Respondent
actually deviated from its written scheduling policy on July 3, 2009 and no evidence extra RNs
were scheduled to work that day.
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C. The Alleged Unilateral Change
On April 19, John Paul Draves (Draves), employed as of December 2009, emailed JD
Melchoide (Melchoide), chief operating officer as follows:
Here is the 2010 Calendar. What is our status when a holiday falls on a
weekend? Do we recognize the holiday Friday/Monday. I have worked where if
the holiday falls on a weekend we are open both Friday and Monday, what has
been the status quo here? Are we looking to change anything? Let me know but
as for the calendar I made, we [will not be] closed if the holiday falls on the
weekend.
Melchiode responded, in pertinent part:
I guess we need to discuss some of these since July 4th, Christmas, and New
Year’s Day all fall on a weekend day . . . my preference is to have at least 1 elective
room. If nobody schedules, then put people on call. [July 5th] will probably be a lighter
day . . . but we need elective capability. . . . Prepare yourself now because the staff may
not be too happy.
Sometime thereafter, Melchoide and Draves discussed whether surgeries should be
scheduled on the observed holiday of Monday, July 5. Melchoide’s expectation was that the
Respondent should be receptive to physician’s surgical needs, including elective cases. Feeling
that physicians would be interested in having the Respondent’s surgical services available on
July 5, Melchoide and Draves decided to schedule elective surgeries, as defined in the surgical
scheduling guidelines, for the observed holiday of Monday, July 5.
In implementation of Melchoide and Draves’ decision to schedule elective cases on July
5, the Respondent, without prior notification to or discussion with the Union, scheduled 12
surgical procedures for July 5, 4 of which were booked more than 6 days before the procedure
date and therefore fell within the elective surgery definition. To provide adequate staff for the
July 5 surgeries, the Respondent placed at least two additional surgical RNs on the July 5
observed-holiday on-call list (the revised on-call schedule) and posted the revised schedule.7
Upon learning of the revised on-call schedule, RN Karen Clendenin (Clendenin), a
registered nurse employed by the Respondent and a member of the Union’s bargaining
committee, spoke to Draves. Clendenin told Draves she had noticed that elective surgeries had
been scheduled for July 5. She objected to the scheduling of elective surgeries on an observed
holiday and to the revised on-call schedule, asserting that the Respondent needed to negotiate
with the Union about any change in past practice.
Thereafter, after consultation with union representative Lisa Morowitz (Morowitz),
Clendenin wrote a letter to Draves on the Union’s letterhead, which 12 surgical RNs signed, and
on June 19 placed it in Draves’ personnel mailbox; the letter read, in pertinent part:
Regarding the matter of proposed changes in the work schedules of all the RN’s in
PPCU. We the undersigned RN’s respectfully remind you that no Unilateral Changes
may be made in staffing, work schedules or hours of operation in any department of
MountainView Hospital. . . . We remind you again that PPCU will continue to operate
under the same conditions we have operated under since the opening of this unit. . . .

7 Mr. Draves told RN Karen Clendenin that she would be the sixth RN on call for that day.
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We have always been a five business day a week department with weekends and
holidays as on-call days only. . . . As this is the current and past practice regarding
PPCU, we expect this to remain unchallenged.
You were informed on June 15, 2010 of our past practice of being closed on holidays
. . . . You decided against past practice, to keep PPCU open despite the fact that the
PPCU schedule was already posted with two on-call nurses only for that holiday. This
. . . violates the past practice of this department. . . .
Draves did not respond to the June 19 letter.
Thereafter Morowitz and Bob Nettles (Nettles), the Respondent’s director of human
resources exchanged the following emails:
June 22 email, in pertinent part, Morowitz to Nettles:
Bob—it has just come to our attention that MountainView has notified nurses in Pre-Op
that it will be open on Monday, July 5 for business and they will be expected to work.
This is a deviation form past practice and this change requires negotiation. . . . Please
get back to me asap regarding dates when we can bargain.
June 25 email, in pertinent part, Nettles to Morowitz:
Lisa . . . As you know, MountainView is a 24/7 operation, and we must plan for the
provision of care and services based on that reality. We will staff PPCU on July 5 with
on-call staff, just as we typically do on days that immediately precede or immediately
follow a holiday occurring on a Saturday or Sunday. Contrary to what you may have
been told, staffing for the PPCU on July 5 will be based on anticipated volume and
patient care needs. This is consistent with our past practice and not a violation of status
quo. In order to meet our staffing needs, we will solicit volunteers; if we do not have
enough volunteers, then employees will be assigned in reverse order of seniority . . . to
be on call that day.8
June 26 email, in pertinent part, Renee Ruiz (Ruiz), union organizer, to Nettles:
Bob—You advised . . . yesterday that PPCU would be staffed on July 5 as per the status
quo with on-call staff. Subsequent to your response, the PPCU manager posted a
schedule and change in operation for July 5 which is in direct contradiction to your
response. . . . The RNs on that unit have already expressed that they are not prepared
to comply with these abrupt and unilateral changes and neither are we. I will be at your
office at 9:00 am Monday, June 28 so we can reach resolution on this matter. . . .9
June 29 email, in pertinent part, Morowitz to Michael Bishop, attorney:
Mike—. . . I have not [heard] back from anyone at MountainView regarding this issue
which we have been discussing for the last 11 days. Both you and Nettles advised that
the status quo would not be changed and assured us we did not need to negotiate in
good faith over unilateral changes. Unfortunately, the nurses are still being told they

8 As it turned out, the Respondent did not initially have volunteers for July 5; the Respondent
scheduled four additional on-call RNs in reverse-seniority order to provide staff for the
procedures scheduled for July 5.
9 Ms. Morowitz also contacted Michael Bishop, the Respondent’s attorney about the
situation.
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must work on Monday as a regular work day and the regular Monday schedule is still up.
We consider this a violation of [the EPA and LRA].10
V. DISCUSSION
An employer violates Section 8(a)(5) and (1) of the Act if it makes material unilateral
changes during the course of a collective-bargaining relationship on matters that are mandatory
subjects of bargaining, “for . . . a circumvention of the duty to negotiate . . . frustrates the
objectives of § 8(a)(5) much as does a flat refusal.” NLRB v. Katz, 369 U.S. 736, 743,747
(1962); United Cerebral Palsy of New York City, 347 NLRB 603, 606 (2006).
The General Counsel argues that, contrary to established policy and without notice to or
bargaining with the Union, the Respondent scheduled elective surgeries for July 5, which
resulted in changes to customary RN staffing, a mandatory subject of bargaining.
The Respondent contends that the issues of scheduling elective surgeries and,
concomitantly, scheduling a sufficient complement of nurses to staff them are not mandatory
subjects of bargaining. Citing Peerless Publications, 283 NLRB 334 (1987), the Respondent
argues that its change in scheduling policy was a core entrepreneurial decision designed to
protect the viability of its surgery services and that it met the “narrowly tailored” and
“appropriately limited” factors enunciated by Peerless. The Board has declined to apply the
Peerless rationale broadly. King Soopers, Inc., 340 NLRB 628, 629–630 (2003). Employee
work schedules, even in a surgery department, are vital aspects of working conditions and are
mandatory subjects of bargaining.11 Even assuming the Respondent did not have to bargain
about its surgery-scheduling policy, it had an “obligation to engage in effects bargaining over a
managerial decision that has an impact on terms and conditions of employment.” Ibid.
The Respondent also argues that it had no obligation to bargain with the Union over
scheduling surgery procedures for July 5, because it followed its established past practice. In
making this assertion, the Respondent presumably refers to Melchiode’s testimony that in 2009
he discussed accepting all July 3, 2009 (the observed holiday) surgical cases with Draves’
predecessor. There is no evidence the Respondent actually deviated from its written surgery-
scheduling policy on July 3, 2009, or that it scheduled extra RNs to work that day; mere
managerial discussion of a possible policy change cannot create an established past practice.
Finally the Respondent urges that its policy should not be read to reflect a wooden
categorization of surgeries as elective, urgent, or emergency, which designations are solely
within the province of the surgeon and not in the Respondent’s discretion. Rather, the
Respondent contends, the policy was intended to prioritize surgical resources, a purpose which,
the Respondent apparently argues, frees it from adherence to the policy. The Respondent’s
motivation in devising the policy is immaterial. The Respondent maintained a policy whereby
surgeries were separated into specific, objective categories dependent on scheduling
timeframes without regard to the urgency of the medical procedure contemplated. The policy
provided that surgeries scheduled to take place more than 6 days from the booking date would
be designated as “elective” and would not be performed on Sundays and holidays. Since the

10 The next day, the parties raised the issue before a mediator. While the Union was
satisfied with the mediator’s resolution of the matter, the Respondent did not agree it was bound
by the dispute resolution. When the Respondent refused to implement the mediator’s
resolution, the Union filed an unfair labor practice charge with the Board on July 14.
11 See Meat Cutters, Local 189 v. Jewel Tea Co., 381 U.S. 676, 691 (1965); Bloomfield
Health Care Center, 352 NLRB 252, 256 (2008).
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change in the policy impacted RN work schedules, the Respondent was obligated to notify and
bargain with the Union before implementing any changes.12 The Respondent’s failure to do so
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The 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. The collective-bargaining unit described herein is an appropriate unit of employees for
collective-bargaining purposes within the meaning of Section 9(b) of the Act.
4. The Union has been at all times since January 14, 2010, and is, the exclusive bargaining
representative of the employees in the above-described unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. Since June 15, 2010, the Respondent has violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union concerning terms and conditions of employment of
employees in the above-described unit by unilaterally changing its policy with regard to
scheduling employees in the Pre and Post Care Unit and the Surgical Services Department
on an observed holiday, July 5, 2010.
6. The unfair labor practice set forth above affects commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found the Respondent has engaged in certain unfair labor practices, I find it must
be ordered to cease and desist and to take certain affirmative action, as set forth below,
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13
ORDER
Respondent, Sunrise MountainView Hospital, Inc. d/b/a MountainView Hospital, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with California Nurses
Association/National Nurses Organizing Committee (CNA/NNOC) (the Union), as the
collective-bargaining representative of its employees in the above-described unit.
(b) Making any changes in wages, hours, or other terms and conditions of employment
of employees represented by the Union without first bargaining with the Union as
their exclusive collective-bargaining representative.

12 The fact that ultimately a sufficient number of nurses volunteered to work on July 5,
obviating a need to assign additional nurses to work that day does not alter the Respondent’s
obligation to bargain over the change.
13 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 purposes.
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(c) Unilaterally scheduling elective surgeries as defined in the surgical scheduling
guidelines on observed holidays without first giving notice to and bargaining with the
Union regarding any resultant changes to unit employee work schedules.
(d) Unilaterally changing the work schedules of employees represented by the Union
without first giving notice to and bargaining with the Union.
(e) 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 effectuate the policies of the Act.
(a) Before making any changes in wages, hours, or other terms and conditions of
employment of unit employees, notify and, on request, bargain with the Union as the
exclusive collective-bargaining representative of the employees in the above-
described unit.
(b) On request, bargain with the Union as the exclusive representative of the employees
in the above-described unit concerning the scheduling of unit employees to provide
services for elective surgeries as defined in the surgical scheduling guidelines on
observed holidays.
(c) On request, bargain with the Union as the exclusive representative of the employees
in the above-described unit concerning the July 5, 2010 change of unit employees’
work schedules in connection with our scheduling of elective surgeries on that day.
(d) Within 14 days after service by the Region, post at its facility in Las Vegas, Nevada,
copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 28 after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, 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 employees and former employees
employed by Respondent at any time since June 15, 2010.
(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 that Respondent has taken to comply.
Dated: Washington, D.C. January 10, 2011
Lana H. Parke
Administrative Law Judge

14 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. More particularly,
WE WILL NOT make any changes in wages, hours, or other terms and conditions of employment
of employees represented by California Nurses Association/National Nurses Organizing
Committee (CNA/NNOC) (the Union) without first bargaining with the Union as their exclusive
collective-bargaining representative.
WE WILL NOT In any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights listed above.
WE WILL bargain with the Union before implementing any changes in wages, hours, or other
terms and conditions of employment of employees represented by the Union.
WE WILL, on request, bargain with the Union concerning the scheduling of unit employees to
provide services for elective surgeries, as defined in our surgical scheduling guidelines, on
observed holidays.
WE WILL, on request, bargain with the Union concerning our July 5, 2010 change of work
schedules in connection with our scheduling of elective surgeries on that day.
Sunrise MountainView Hospital, Inc. d/b/a
MountainView Hospital
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.