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

National Labor Relations Board - Administrative Judge Opinions

May 16, 2013

21-CA-090211 (N.L.R.B. May. 16, 2013)

JD(SF)–21–13
Fallbrook, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES

FALLBROOK HOSPITAL CORPORATION
D/B/A FALLBROOK HOSPITAL

and Case Nos. 21–CA–090211
21–CA–096065
CALIFORNIA NURSES ASSOCIATION/
NATIONAL NURSES ORGANIZING COMMITTEE
(CNA/NNOC), AFL–CIO

Lisa E. McNeill, Esq. for the General Counsel.
Don T. Carmody Esq.
Carmen M. DiRienzo, Esq. for the Respondent.
Micah Berul, Esq. and Nicole Daro,Esq.
for the Charging Party.

DECISION

STATEMENT OF THE CASE

ELEANOR LAWS, Administrative Law Judge. This case was tried in San Diego, California
on April 8–10, 2013. The California Nurses Association/National Nurses Organizing Committee
(CNA/NNOC, CNA, Union, or Charging Party)1 filed the charge in Case No. 21–CA–090211
September 26, 2012, the first amended charge on November 8, 2012, and the second amended
charge on December 14, 2012.2 The Acting General Counsel issued the complaint on December
21, 2012. Fallbrook Hospital (the Respondent, Hospital or Fallbrook) filed an answer on January
4, 2013, denying all material allegations and asserting affirmative defenses. The Respondent
filed an amended answer on February 8, 2013.

The Charging Party filed the charge in Case No. Case No. 21–CA–096065 on January 9,
2013. The Acting General Counsel consolidated the cases and issued the consolidated complaint
on March 6, 2013. The Respondent filed an answer on March 20, 2013, denying all material
allegations and asserting affirmative defenses. The Respondent filed an amended answer on

1 The transcript repeatedly and erroneously refers to the CNA as the CAN. It was a battle with auto-
correct every time I wrote CNA, and it is my hope I prevailed on each instance.
2 All dates are in 2012 unless otherwise indicated.
JD(SF)–21–13
2
April 2, 2013, that omitted some previously asserted affirmative defense and added
others.3 The Respondent filed a motion to dismiss on April 2, 2013, asserting the Board lacks a
quorum based on Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), and the Acting General
Counsel’s appointment was unlawful. I denied the motion on April 5, 2013.
5
The complaint alleges that the Respondent violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act) by failing and refusing to bargain with the Union in good
faith over the terms of a collective-bargaining agreement, failing and refusing to bargain with the
Union over the termination of two employees, and failing to furnish relevant information to the
Union. 10

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the Acting General Counsel, Respondent and Charging Party,
I make the following
15
FINDINGS OF FACT

I. JURISDICTION

The Respondent is a corporation operating an acute care hospital in Fallbrook, California. 20
In the course and conduct of its business operations, the Respondent annually derives gross
revenues in excess of $250,000 and annually receives and purchases goods, materials, and
services valued in excess of $5000 directly from points outside the State of California. It is
admitted and I find that the Respondent is, and at all material times has been, an employer within
the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the 25
meaning of Section 2(14) of the Act. I further find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES
30
A. Background

Fallbrook Hospital is an acute care facility. Community Health Systems (CHS) is the
Hospital’s parent company.
35
CNA/NNOC was certified to represent the following unit on May 24, 2012:

All full-time, regular part-time, and per diem registered nurses, including those
who serve as relief charge nurses, employed by the Respondent at its facility
located at 624 East Elder Street, Fallbrook, California; excluding all other 40
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.

3 At the hearing, the Respondent indicated that one of the omissions was inadvertent. I therefore
granted the Respondent’s request to amend the answer to include it as affirmative defense No. 9.
JD(SF)–21–13
3
At all relevant times the Union has been nationally affiliated with the AFL–CIO. Stephen
Matthews is a labor representative with the CNA/NNOC. He negotiates collective-bargaining
agreements and represents nurses. (GC Exh. 2.)4

The Hospital has a policy entitled “Event and Government Reporting” which ensures 5
processes are in place to improve patient care and safety. Per the policy, employees are
instructed to fill out an on-line event report form, also referred to during the hearing as an
incident report, if something noteworthy occurs on their shift. The form lists several examples of
what types of incidents or events should be reported. Employees are trained on the policy and
the event reporting system during new employee orientation. Nurse Shelly Mueller (Mueller) 10
believed the incident report was for reporting an event like a slip and fall, medication error, or a
patient leaving against medical advice. She supposed it could be used to report an unsafe
working condition, but had not been instructed to use the form for this purpose.

Linda Maxell (Maxwell), a registered nurse, is the risk manager, patient advocate, and 15
facility compliance officer at Fallbrook Hospital. She reviews every incident report and
investigates each incident with the director of the department where the incident originated.
Maxwell meets weekly with the chief nursing officer and the director of nursing at the skilled
nursing facility to discuss each incident. Maxwell receives roughly 10–15 incident reports a
week. 20

If a nurse believes staffing is inadequate, pursuant to Hospital policy, he or she is to raise
this concern with the charge nurse and then move up the chain of command if the matter is not
resolved. With regard to patient safety, nurses fill out a form of acuity each night. Nobody
outside the Hospital can resolve issues relating to patient care. 25

The Union has created so-called “assignment despite objection” (ADO) forms upon
which nurses can document assignments or situations they feel are not safe for the patient or may
compromise the nurse’s license.5 The Union provided the forms to the Respondent’s nurses
shortly after the election. A stack is kept at the Hospital and available for nurses’ use. Matthews 30
and fellow Union Labor Representative Glynis Golden-Ortiz trained the nurses on how to use the
form in June. Before filling out the ADO form, the nurse must first verbally let her supervisor
know about the issue or concern and give him/her a chance to address it. Once filled out, the
nurse gives a copy of the form to his/her manager, a copy to the Union’s facility bargaining
committee member, and a copy to the union labor representative. There is a line on the form 35
designated for the supervisor’s response. (GC Exh. 8). The Union did not instruct its members to
fill out the ADO form instead of the Hospital’s form or to fail to follow the Hospital’s internal

4 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for Respondent’s
exhibit; “GC Exh.” for Acting General Counsel’s exhibit; “CP Exh. for Charging Party’s exhibit; “GC
Br.” for the Acting General Counsel’s brief; “R Br. for the Respondents’ brief; and “CP Br.” for the
Charging Party’s brief. Although I have included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence
specifically cited, but rather are based my review and consideration of the entire record.
5 There is another form called “technical despite objection” or “TDO” which offers a similar
protection to the nurse as the ADO but the focus is on technology as opposed to an assignment. Use of the
TDO form has no bearing on this case.
JD(SF)–21–13
4
procedures for addressing patient safety concerns or incidents. Union members are not required
to fill out ADO forms and there are no repercussions for failing to use them.

Maxwell noted one important feature of the Hospital’s event report form is it cannot be
discovered in a medical malpractice suit or by the public because it is designated as a “safety 5
work product” designed to encourage improvements in patient safety.6 She does not believe the
ADO form has similar protections. Maxwell also noted the ADO form lacks certain specific and
pertinent information.

B. Bargaining Meetings and Progress 10

Pursuant to an agreement entered into prior to the Union’s certification, the CHS and the
Union had tentatively agreed on some issues including retirement benefits, union security, and
recognition. (GC Exh. 6). These provisions were pre-negotiated before the election as to what
the parties would agree to if the nurses selected CNA as their representative. 15

The Hospital and Union met for the first time on June 13. The meeting was introductory
and took place at the Hospital. Matthews was present for the Union along with Golden-Ortiz and
bargaining team nurses Mueller, Carol Givens (Givens),7 Rosenda McDowell (McDowell), and
Rebecca Ojala. Don Carmody (Carmody), the Hospital’s attorney was present for the Hospital, 20
along with the Hospital’s Human Resources Director Greg Smorzewski (Smorzewski), CHS
Human Resources Director Jan Ellis (Ellis), and Corporate Representative Jim Carmody.8
Matthews gave the Hospital a preliminary information request and the parties discussed dates for
bargaining.
25
On June 25 Union received some of the information it requested from the Hospital.

The first bargaining session took place on July 3 at the Palo Mesa Resort. For the Union,
Matthews and three bargaining team nurses were present.9 For the Hospital, the same
individuals who at the June 13 meeting were present, with the exception of Jim Carmody. The 30
meeting began with a discussion about the information requests. The Union then presented its
initial written proposals, which totaled more than 30.10 (GC Exh. 3.) Carmody stated the
Hospital would not give any proposals until the Union provided all their proposals. Matthews
responded that this was bad-faith bargaining, and Carmody replied that he had negotiated in this
manner for 30 years. In Matthews’ experience, an employer had never conditioned bargaining on 35
the Union first presenting all of its proposals. The Hospital did not submit any proposals.

The parties had another bargaining session on July 17, 2012, at the same location with
most of the same individuals present. Carmody started off the meeting by stating the Hospital

6 I take notice that the witness was referring to the Patient Safety and Quality Improvement Act of
2005, 42 U.S.C. ch. 6A, subch. VII, part C.
7 Givens left Fallbrook Hospital in February 2013, and at the time of the hearing worked at Meniffe
Hospital.
8 Jim Carmody and Don Carmody are not related. Jim Carmody’s position was not identified.
9 McDowell and Givens missed this session.
10 One of the proposals submitted, Article 29, was aimed at making several improvements to patient
care.
JD(SF)–21–13
5
expected all the Union’s proposals before they would offer any proposals or counter-proposals.
According to Matthews, Carmody was very loud and adamant that his way was the way it was
going to be. The Union submitted three additional proposals, leaving only its wage proposal left
to submit. (GC Exh. 4.) The Hospital did not submit any proposals or counter-proposals.
5
The third bargaining session was July 25 at the same location with the same individuals
present. Carmody again voiced the Hospital’s refusals to submit proposals until the Union had
submitted all of theirs. Matthews stated he expected the Hospital to bargain and told Carmody
the Union needed proposals from the Hospital. By this time, the Union had submitted everything
except its wage proposal, and was awaiting a response to an information request prior to making 10
the wage proposal. Carmody presented the Union with a change to the heading for the union
security provision to indicate it was between Fallbrook Hospital and the California Nurses
Association. The Hospital did not submit any new proposals.

The parties also discussed Nurse Libby Sandwell, who the Union believed was unjustly 15
terminated. The Union demanded bargaining over her termination, and was awaiting a response
from the Hospital to an information request. Carmody would not agree to provide the requested
information or meet about Sandwell’s termination.

Martha Robinson is a nurse who served on the Union’s facility bargaining committee. 20
The members of the facility bargaining committee keep nurses up to date on bargaining efforts.
Robinson was terminated on July 29. Matthews tried to meet with Smorzewski the morning of
July 30, to discuss her termination, but Smorzewski said Carmody instructed him not to discuss
terminations. When pressed, Smorzewski instructed Matthews to call Carmody. Matthews called
Carmody, who said the Hospital would not meet about Robinson’s termination, and they could 25
use the Hospital’s internal grievance system.

At some point during the July meetings, Carmody expressed that the Hospital could be
legally liable in connection with the ADO forms and said the Hospital was not going to
recognize them. Matthews responded that the Union intended to continue to use the forms but if 30
the Hospital wanted to make a proposal about their use, the Union was willing to negotiate.

The fourth bargaining session was on August 2, at the same place as the previous sessions
with the same people present. Matthews stated Robinson was denied her right to a Weingarten
meeting, and he submitted a written request for information enumerating 12 items he believed 35
would assist the Union in representing her. (GC Exh. 5.) Specifically, the Union wanted this
information to see if Sandwell was treated differently because of her union activities and also to
determine if there was an age bias. Carmody said Smorzewski would provide some of the
information in the next couple of days but the Hospital would not commit to meet about
Sandwell. Carmody also gave the previously-agreed to retirement benefits proposal, which he 40
drafted, to the Union. The parties signed off on previously-agreed-to articles regarding
recognition, union security, and retirement benefits. The Hospital did not submit any new
proposals or counter-proposals at the meeting.

The Hospital provided information responsive to all but one of the requests related to 45
Sandwell’s termination. The disputed request asks for a list of terminations of emergency room
nurses for the past 3 years and the reason each was terminated.

JD(SF)–21–13
6
Bargaining resumed on August 22 at the same location with the same individuals. The
parties discussed a new position of clinical informaticist, which involves electronic charting, and
Matthews requested information about it. Matthews said the Union expected some proposals,
and Carmody said the Hospital expected all of the Union’s proposals before it would respond.
The Hospital did not submit any proposals or counter-proposals at the meeting. 5

The sixth bargaining session took place on September 12 at the Fallbrook Community
Center. The parties discussed the new position of clinical informaticist. The Union also
requested exit interviews of the nurses who had left the Hospital to assist in putting together a
wage proposal. After caucusing with the other individuals from the Hospital, Carmody returned 10
and said they were done for the day and he would send an email explaining why they were
leaving. Matthews did not receive an email or any other communication explaining why the
Hospital bargaining team members left the meeting.

The parties seventh bargaining session was back at Palo Mesa on October 11. Rebecca 15
Ojala, who had been selected as the clinical informaticist, was present as usual in her role as a
member of the bargaining team. Carmody came in with his team, and without sitting down,
immediately said he would not bargain because the Union had a member of management present.
The Union offered to discuss a wage proposal it had prepared, but the members of the Hospital
negotiating team refused and walked out. The meeting lasted about 3 minutes. Matthews 20
subsequently emailed the wage proposal to Carmody. (GC Exh. 7; Tr. 51.)

The parties reconvened for their eighth bargaining session on October 18 at a hotel in
Temecula with a mediator present. After the meeting, Matthews received an email from Ellis
with proposals about grievance/arbitration and no strike/no lockout. 25

The Union periodically distributes bargaining updates consisting of a page or two of
highlights related to bargaining. A Fallbrook Hospital bargaining update dated October 19
contained a blurb about improving patient care, and noted the Union stands by its proposals,
including the nurses’ right to protect their licenses by use of ADO forms. (R. Exh. 2). 30

During the time period relevant to the instant complaint, CHS was also bargaining with
the Union at Barstow Hospital. The Union distributed ADO forms at Barstow Hospital and used
them in the same manner as at Fallbrook Hospital. In an October 19 bargaining update to the
nurses at Barstow Hospital, the Union reported that it would stand by various proposals, 35
including one to allow nurses to protect their licenses by use of the ADO form. (R. Exh. 1).

On November 1, Nurses McDowell, Mueller and Givens submitted an ADO form stating
they believed it was unsafe to monitor telemetry patients outside of their specific units. Givens
filled out the form and gave it to supervisor Irma Papini. Nobody filled out an incident report 40
about this issue. Maxwell saw the completed form for the first time at the hearing and was very
concerned it had not previously been brought to her attention.

The parties met again with the mediator on November 20 back at Palo Mesa. The
Hospital submitted 14 proposals. During the next session, on November 30, the Hospital offered 45
a proposal regarding leaves of absence, and the Union submitted 10 counter-proposals.

JD(SF)–21–13
7
In the November 30 Fallbrook Hospital bargaining update, the Union poses the question
of how it can get management to address the most critical issues and give acceptable counter-
proposals. One answer it provides is to document patient care issues by filling out ADO forms.
The update goes on to note that the nurses at Barstow Hospital have already won patient care
improvements by using the ADO forms. (R. Exh. 4.) 5

The December bargaining update distributed to the nurses at CHS-affiliated hospitals
describes the ADO form, and encourages nurses to use them. It states that the professional
practice committee will use them to raise patient care issues that need to be addressed and the
bargaining team will use them at the negotiating table to win important contract provisions. 10
(R. Exh. 3.)

There was a scheduled bargaining session for Barstow Community Hospital on
December 28. About 5 or 6 minutes into the session, Carmody informed Matthews that he
would not bargain with the Union at Barstow or Fallbrook if the nurses used the ADO forms and 15
they were at impasse both places. Matthews stated that the Union intended to use the ADO
forms, but the parties were not at impasse and Union was willing to bargain over the use of the
forms or any other issue. Carmody told Matthews the Hospital would not bargain with the Union
unless they were willing to stop using the forms, stated they needed mediation, and left the room.
Matthews sent Carmody an email that same day, recounting the events of the earlier session, and 20
noting the Union’s willingness to negotiate with the assistance of a mediator. He resent the email
on December 31. (GC Exh. 9.)

The January 2013 bargaining update distributed to the nurses at CHS-affiliated hospitals
discusses how filing ADO forms led to a change in scheduling practices and notes that nurses in 25
Barstow and Fallbrook have won improvements in equipment by using ADO forms. (R. Exh. 5.)

The parties had their eleventh and final bargaining session on January 8, 2013, with a
mediator present.11 Carmody was not present. Don DeMarco, an attorney for the Hospital,
negotiated on its behalf with Ellis also present. Ojala was no longer on the bargaining team for 30
the Hospital. James Moy, a labor representative for the Union, was also present. DeMarco
expressed that the parties were at impasse because of the Union’s insistence on using the ADO
forms. Matthews disputed this and said they were willing to bargain over the forms. DeMarco
said they were done for the day and left the session. The session lasted about 15 minutes.
35
On January 14, 2013, Matthews sent Carmody an email, noting that for the Hospital had
been conditioning bargaining on the Union’s discontinuance of the ADO forms, and inquiring
about future bargaining dates. Carmody responded the same day, noting that the Union was
correct that no future bargaining dates were scheduled, and informing Matthews he would
respond shortly. (GC Exh. 11.) Matthews did not receive a response. 40

Matthews sent Carmody an email on January 16, 2013, inquiring about a response to an
information request the Union had made and asking for available bargaining dates. (GC
Exh. 12.) Carmody did not reply. Matthews followed up with a similar request on January 21,
and received no response. (GC Exh. 13.) 45

11 McDowell recalled two mediators were present.
JD(SF)–21–13
8
During the bargaining sessions, neither the Hospital nor the Union made any proposals
specifically over the use of the ADO forms.

C. Affiliation with National Union of Healthcare Workers
5
Michael Lighty works for the CNA/NNOC and its national affiliate, National Nurses
United (NNU). The NNU has roughly 185,000 members and five affiliates, the largest of which
is the CNA/NNOC. Its purpose is to build a national nurses’ movement. The National Union of
Healthcare Workers (NUHW) affiliated with the CNA effective January 1, 2013, pursuant to a
November 30, 2012, agreement. (GC Exh. 1(aa).) CNA’s board of directors approved the 10
agreement on November 29. Under the agreement the two entities provide support to each other
but each remains autonomous. An integration team, consisting of Holly Miller from the CNA
and Phyllis Willet from the NUHW, was formed and its work consists of reviewing accounting
methods and reporting requirements. CNA/NNOC writes a check each month to NUWH to cover
expenses primarily related to an organizing campaign at Kaiser Permanente. The monthly 15
amounts have been between $1 million and $1.2 million from January through April, 2013. The
agreement spells out terms related to the repayment of the loans from CNA to NUWH.

Since the affiliation, the CNA maintains its same name, address, phone number and
website. One of the four women serving on the council of presidents stepped down in April for 20
reasons unrelated to the affiliation and was replaced. Aside from that, the officers of CNA have
not changed since the affiliation. CNA’s business agents did not change after the affiliation, nor
did their duties. The same 35 members of CNA’s board of directors have remained since the
affiliation. There have been no operational changes to the CNA since the affiliation, and no
changes to how CNA processes grievances or arbitrates disputes. The affiliation likewise did not 25
change how CNA negotiates labor contracts and has not resulted in changes to contract
negotiation committees. Membership dues and initiation fees have remained the same. CNA
represents the same types of employees, primarily registered nurses, before and after the
affiliation. The affiliation has not changed the number of members the CNA represents. The
work of the stewards has not changed since the affiliation. CNA members have no rights under 30
NUHW contracts and vice-versa. CNA’s internal voting processes did not change following the
affiliation. The affiliation has not impacted the CNA’s retirement funds. There has been no
change to the CNA’s reporting requirements to state or federal agencies.

III. DECISION 35

A. Alleged Refusal to Bargain for Initial Collective-Bargaining Agreement

The complaint, at paragraph 8, asserts that the Respondent violated Section 8(a)(1) and
(5) of the Act by refusing to bargain in good faith to establish a collective-bargaining agreement 40
with the Union.

Section 8(a)(5) and 8(d) of the Act obligates parties to "confer in good faith with respect
to wages, hours, and other terms and conditions of employment." NLRB v. Wooster Division of
Borg-Warner Corp., 356 U.S. 342, 344 (1958). The good faith requirement means that a party 45
may not “negotiate” with a closed mind or decline to negotiate on a mandatory bargaining
subject. “While Congress did not compel agreement between employers and bargaining
representatives, it did require collective bargaining in the hope that agreements would result.”
JD(SF)–21–13
9
N.L.R.B. 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 Manufacturing Company, 118 F.2d 874, 885 (1st Cir.
1941), cert. denied 313 U.S. 595 (1941).
5
The quantity or length of bargaining sessions does not establish or equate with good-faith
bargaining. NLRB v. American National Insurance Co., 343 U.S. 395, 404 (1952). The Board
will consider the “totality of the conduct” in assessing whether bargaining was done in good
faith. NLRB v. Suffield Acad., 322 F.3d 196, (2d. Cir. 2003), enfg. 336 NLRB 659 (2001).
10
I find the totality of the conduct indicates the Respondent operated with a closed mind
and put up a series of roadblocks designed to thwart and delay bargaining. From July through
October, over the course of eight bargaining sessions, the Hospital would not submit any new
proposals or counter-proposals, arguing that it was not going to bargain with the Union until it
received all of the Union’s proposals. By the October 11, 2012, bargaining session, the Union 15
had prepared its wage proposal, which was the only proposal it had left to submit. Having met
the Respondent’s initial demands, the Union offered to discuss the proposal. The Hospital
negotiating team walked out, however, asserting Ojala, who the Hospital had recently appointed
to the informaticist position, was now management. Only after a mediator was engaged did the
Hospital come forward with any new proposals. A little more than a month later, with no 20
bargaining sessions in the interim, Carmody announced, during a bargaining session involving
Barstow Hospital, that Respondent would not bargain with the Union at Barstow or Fallbrook
Hospitals if the nurses continued to use ADO forms. He declared they were at impasse both
places. Thereafter, as detailed in the statement of facts, the Hospital insisted that it was at
impasse, and ultimately stopped responding to the Union’s requests to bargain. 25

I consider the totality of the Respondent’s conduct, noting the nature of the Respondent’s
avoidance tactics changed over time. To best align with the complaint allegations, I will analyze
the parts in consideration of the whole.
30
1. Failure to submit proposals or counter-proposals

The Acting General Counsel and Charging Party first assert the Respondent’s refusal to
bargain with the Union until it had submitted all its proposals shows bad faith. The Charging
Party and Acting General Counsel point to MRA Associates, Inc., 245 NLRB 676, 677 (1979), 35
for support. There, the Board affirmed the administrative law judge’s determination that 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. The Charging Party also notes that pursuant to Bryant & Stratton Business Institute,
321 NLRB 1007, 1042 (1996), enfd. 140 F.3d 169 (2d Cir. 1998), “failure to pursue proposals or 40
lack of exchange of proposals or counterproposals” is a factor to consider. See also United
Technologies, 296 NLRB 571, 572 (1989) (violation where employer refused to submit counter
proposals and conditioned its bargaining over economic contract issues); Ardley Bus
Corporation. Inc., 357 NLRB No. 85, slip op. at 4 (August 31, 2011) (violation where employer
demanded union proposals in writing as a bargaining condition); Vanguard Fire & Supply, 345 45
NLRB 1016, 1017 (2005), enfd. 468 F.3d 952 (6th Cir. 2006) (same where submission of
bargaining agenda is precondition to bargaining).

JD(SF)–21–13
10
Matthews, McDowell, Givens, and Mueller provided consistent and uncontroverted
accounts of the bargaining sessions between July and October, which are detailed in the
statement of facts. There is no contrary description of the meetings, and I credit the witness’
corroborated and undisputed testimony about what occurred. As current employees testifying
against their own pecuniary interests, I find McDowell and Mueller’s testimony to be particularly 5
reliable. Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB
1304 fn. 2 (1961); Gateway Transportation Co., Inc., 193 NLRB 47, 48 (1971); Federal
Stainless Sink Div. of Unarco Industries, Inc., 197 NLRB 489, 491 (1972). With regard to
Givens, she left Fallbrook Hospital voluntarily to pursue another job, and therefore has nothing
to gain or lose by being truthful. The witnesses were clear that Carmody adamantly and 10
consistently refused to bargain over anything until the Union submitted all of its initial written
proposals. Over the course of seven bargaining sessions, the Respondent obstinately adhered to
a fixed position of unwillingness to bargain, with no room for debate or even basic discussion.
The Respondent submitted no proposals or counter-proposals during these sessions. Only after
the October 18 session with the mediator did the Respondent submit its first proposal. 15

The Respondent points to NLRB v. Arkansas Rice Growers Co-Op Assn., 400 F. 2d 565,
568 (8th Cir. 1968), for the proposition that failure to make a counter-proposal, in and of itself,
does not constitute an unfair labor practice. While this is true, the Court’s point was that the
single refusal to offer a counter proposal to the union’s proposal regarding dues collection was 20
not a per se violation. Notably, 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.” Id.
25
The Respondent also argues that provisions CHS and the Union negotiated prior to the
Union’s certification show good faith. That there may have been good faith negotiations
between the Hospital’s parent company and the Union at some point in the past does not impact
my findings based on the record before me.12
30
Based on the foregoing, particularly considering the obstinate and pugnacious manner in
which the Respondent’s bargaining agents conducted themselves during the sessions along with
other indicia of bad faith discussed below, I find the Respondent’s conduct of steadfastly
refusing to submit any proposals or counter-proposals violated Section 8(a)(1) and (5) of the Act
as alleged. 35

2. The ADO forms and patient care

The complaint allegation at paragraph 8(c), that the Respondent has refused to bargain
unless unit employees stop using ADO forms, and the Respondent’s sixth and seventh 40
affirmative defenses, that it had no duty to bargain over the delivery of patient care and the
Union engaged in bad-faith bargaining by insisting on such bargaining, are intertwined.

To briefly summarize, the parties exchanged some proposals in November after engaging
a mediator. Things fell apart again in December, however, when, during a bargaining session at 45

12 There is no evidence of record about what happened during these negotiations other than they
resulted in agreement on certain provisions and CHS was not named as a respondent in this case.
JD(SF)–21–13
11
another hospital, the Respondent declared impasse over the Union’s use of the ADO forms. The
Respondent thereafter attended one more bargaining session where the Respondent’s bargaining
immediately announced the parties were impasse because of the Union’s use of the ADO forms.

a. Proposals about ADO forms 5

The Respondent asserts that the Union insisted on bargaining over the ADO forms, and
because the ADO forms concern patient care, there was no requirement to bargain. The record is
devoid of any proposals or counter-proposals from either party over the use of ADO forms.
There is no evidence that anything substantive about the ADO forms was discussed, much less 10
proposed. The only way they touch on the bargaining sessions is by the Respondent’s refusal to
bargain because of them and/or about them, despite the Union’s willingness to bargain. Because
there is no record evidence that the Union or the Respondent submitted or even discussed any
proposals about the ADO forms, I find the Respondent’s defense on this basis lacks merit. I will
nonetheless address the Respondent’s arguments grounded in this defense in the event a 15
reviewing authority disagrees with me.

b. Use of ADO form and bargaining objectives

The Respondent argues the Union was insisting on using the ADO form to obtain 20
impermissible bargaining objectives. Specifically, the Respondent asserts it has no duty to
negotiate over patient care and the use of the ADO form was an attempt to force such
negotiations in bad faith.

As noted, the ADO form is not mentioned in any of the proposals or counter-proposals 25
the parties exchanged. At the hearing, the Respondent pointed to bargaining updates the Union
sent to its members, which reference proposals relating to the use of ADO forms. The Union’s
communications to its members about the bargaining negotiations are not bargaining proposals.13
There is no evidence the bargaining updates were brought to the bargaining table and it was not
established at the hearing that anyone on the Respondent’s bargaining team received or 30
considered them during negotiations. In any event, what the Union tells its members it will
advocate for in bargaining is a far cry from insisting on the same at the bargaining table. While
conduct away from the bargaining table may be considered in determining whether parties have
engaged in good-faith bargaining, the Board has been “reluctant to find bad-faith bargaining
exclusively on the basis of a party's misconduct away from the bargaining table.” Litton Systems, 35

13 It appears that Carmody did not receive at least some of the bargaining updates until they were
subpoenaed in connection with this case. (Tr. 172). The Respondent also points out that article 29 in the
proposals the Union submitted back in July relates to patient care, as Givens acknowledged. This was
never asserted as a reason not to bargain with the hospital anywhere close to when the proposal was
made. As the Charging Party points out, there was no evidence presented to show anyone at the
bargaining table based the decision not to bargain on the assertion that the “Union’s actual proposals
encroached into areas concerning its entrepreneurial scope of decision making.” (CP Br. 17).
Nonetheless, as will be discussed below, it was not a valid reason to simply quit bargaining.
The Respondent’s attempts to discredit the bargaining team nurses’ testimony that the ADOs
were not part of the bargaining team’s strategy are unconvincing. The nurses did not draft the bargaining
reports that labeled the Union’s use of the ADO forms as “proposals.”

JD(SF)–21–13
12
300 NLRB 324, 330 (1990), enfd. 949 F.2d 249 (8th Cir. 1991), cert. denied 503 U.S. 985
(1992). The Board in Litton reasoned:

Typically, away from the table misconduct has been considered for what light it sheds on
conduct at the bargaining table, but without evidence that the party's conduct at the 5
bargaining table itself indicates an intent [not] to reach agreement it has not been held to
provide an independent basis to find bad-faith bargaining.

Id. Despite the Respondent’s assertions that the Union was acting in bad faith, there is no
evidence to show that Union’s conduct at the bargaining table exhibited intent not to reach 10
agreement.

The Respondent argues that the Union was impermissibly using the ADO forms as a tool
to negotiate over patient care. It is without question that the Hospital’s core function is patient
care and safety. It does not follow, however, that the Hospital can simply refuse to engage in 15
any bargaining over issues that touch on patient care. As the Board has noted, “[i]n the health
care field, patient welfare and working conditions are often inextricably intertwined.” Valley
Hospital Medical Center, 351 NLRB 1250, 1252 (2007).

The Respondent cites to First National Maintenance Corp. v. NLRB, 452 U.S. 666 20
(1981), for support. The Supreme Court explicitly limited its holding, however, to whether an
employer, under its duty to bargain in good faith, must negotiate with the union over its decision
to close a part of its business. Id. at 667, 687. The Respondent also cites to NLRB v. Longy
School of Music, 759 F. Supp. 2d 153 (2011), which involved a request for preliminary
injunctive relief in a case involving partial closure and merger of a private music school. Even if 25
the Board was bound by this decision, it is distinguishable, as the Court’s finding that there was
no duty to bargain was based on its determination that the employer’s actions involved a change
in the scope and direction of the enterprise under First National Maintenance. See also IBEW v.
NLRB, 563 F.3d 418 (9th Cir. 2009) (merger and decision to integrate two companies).14
30
Nothing about the scope or direction of the Respondent’s business changed. It operated
an acute care facility before bargaining began and after it stalled. It had the same obligation to
deliver patient care and employed the same event reporting system for monitoring this
obligation. The Respondent cites to the nurses’ use of the ADO form rather than the Hospital’s
event reporting system to report their concern about patient safety on November 1 as evidence 35
that the nurses no longer believed they were obligated to use the Hospital’s system. This does
not establish that the Union was attempting to bypass the Hospital’s reporting procedures.15 In
fact, Matthews’ uncontroverted testimony is that the Union never instructed nurses to bypass the
Hospital’s procedures or required them to use the ADO form. Even assuming the Union utilized

14 In each of these cases the employer was required to engage in effects bargaining. The Respondent
also cites to a few California state court cases that are not binding on the Board.
15 I find this particularly true in light of the fact that the safety issue raised was not an event in line
with the long list of examples the Hospital’s policy provides. I also note that management was aware of
the issue by virtue of the forms of acuity the nurses fill out nightly for patient safety. (Tr. 351.) In any
event, if the nurses failure to abide by the Hospital’s requirement to use its reporting system, action
related to their disobedience, as opposed to a refusal to bargain with the Union over anything, would seem
more appropriate.
JD(SF)–21–13
13
the ADO forms as part of its bargaining strategy, I find First National Maintenance and its
progeny are not on point.

The Respondent makes various arguments about the rogue and the sloppy nature of the
ADO form and how the Union handles them, as well the potential perils of their use. These 5
arguments miss the point. First, and most fundamentally, there is no evidence that the Union
ever insisted that the Respondent recognize the form, as alleged. (R. Br. 2). The Union
continued to support its members’ use of the form, but had no control over whether any
supervisors or managers at the Hospital would sign off on or accept the ADO forms. When the
Union offered to bargain over the matter following the Respondent’s assertions of impasse, the 10
Respondent declined to put its belief that the Union was engaged in bad-faith bargaining by
insisting on perpetual use of the ADO form, with all its inherent flaws, to the test. Any
assertions that the Union could have offered nothing through collective bargaining are
speculation. The Respondent did not claim to know what proposals the Union would have made
regarding the forms, or what alternative solutions the give-and-take of bargaining might have 15
generated. See Reisman Bros., Inc. 165 NLRB 390, 393 (1967).

Moreover, these arguments logically would forbid employees from making any written
complaints about working conditions that may touch on patient care outside of the Hospital’s
event reporting system or chain of command. The Board has held, however, even in a hospital 20
setting, that “an employer may not interfere with an employee’s right to engage in Section 7
activity by requiring that the employee take all work-related concerns through a specific internal
process.” Valley Hospital, supra.

Finally, as the Acting General Counsel points out, this case does not turn on whether the 25
use of the ADO form is a mandatory or permission subject of bargaining. Respondent’s
unwillingness to discuss the matter with the Union either constitutes a refusal to bargain over a
mandatory subject or insistence on a permissive subject of bargaining, both of which violate the
Act under NLRB v. Wooster Div. of Borg-Warner Corp. 356 U.S. 342, 344, 347–349 (1958); See
also Smurfit-Stone Container Enterprises, 357 NLRB No. 144, slip op. at 4–5 (2011). 30

For all the above reasons, I find the Respondent’s defenses concerning the use of the
ADO form and the Union’s insistence on bargaining over patient care lack merit.

c. ADO forms as protected concerted activity 35

The parties advance arguments about the nurses’ use of ADO forms to engage in
protected concerted activity. The complaint and the answer are silent on the matter, and without
the issue squarely before me in a factual context that was litigated, I cannot decide it. Without
support, the Charging Party states the forms are often used to object to assignments that violate 40
state-mandated ratios. (CP Br. 7.) The Respondent asserts that the forms may not be used for
protected concerted activity based on the recognized special characteristics of a hospital setting.
The form could potentially be filled out for a variety of reasons by an individual or group.
Without an allegation before that a specific use of the form was protected concerted activity,
I am constrained from ruling.16 45

16 The complaint allegations in another pending case the Charging Party cites to in its brief are the
type of allegations that would appropriately lead to a ruling on the issue. (CP Br. 10–11).
JD(SF)–21–13
14

d. Impasse

The Respondent asserts that the Union insisted to impasse on the use of the ADO form,
thereby obviating its duty to bargain.17 (R Br. 14.) This contention is absurd and I will not 5
belabor it with a lengthy analysis. The evidence plainly shows that the Union continually offered
to bargain about the proposals the parties had submitted, as well as the ADO form, when the
Respondent attempted to use it as an excuse not to bargain. The Respondent points to portions of
an email Matthews sent and resent following Carmody’s abrupt departure from the December 28
bargaining session at Barstow Hospital. The email clearly states Matthews’ position that the 10
Union is not at impasse, and conveys that if the Hospital refuses to negotiation in good faith, it
will file a charge that its failure to do so is bad-faith bargaining.18 (GC Exh. 9.) For the
Respondent to state this shows the Union is declaring impasse on all bargaining issues while
contending the Hospital is attempting in good faith to reach a bargaining agreement is truly
confounding. Because there is no evidence the Union ever insisted on impasse, I find this 15
allegation has no merit.19

B. Alleged Refusal to Bargain over Terminations

The complaint, at paragraph 9, alleges the Respondent violated the Act by refusing to 20
bargain over the terminations of unit employees Martha Robinson and Libby Sandwell.

An employer has an obligation to bargain with its employees’ bargaining representative
over terms and conditions of work. Termination of employment is unquestionably a mandatory
subject of bargaining. See N.K. Parker Transport, Inc., 332 NLRB 547, 551 (2000). This is true 25
even if the parties have not yet negotiated to agreement at that time of the terminations. Ryder
Distribution Resources, 302 NLRB 76, 90 (1991).

It is uncontested that the Respondent refused to meet to discuss the terminations of either
Robinson or Sandwell. 30

The Respondent cites to Alan Ritchey to support its position that there was no duty to
bargain, but clearly misconstrues the decision. Alan Ritchey concerns unilateral change
allegations, absent here. The issue in Alan Ritchey was “whether an employer whose employees
are represented by a Union must bargain with the Union before imposing discretionary discipline 35
on a unit employee.” Id. at 1 (emphasis in original). It concluded that “after the employer has
decided (with or without an investigatory interview) to impose certain types of discipline, it must

17 I note that impasse was not raised as an affirmative defense, and may be considered waived. M &
C Vending Co., 278 NLRB 320, 325 (1986). Notably, the Charging Party did not present argument about
this defense in its brief. I address it briefly in the event it may be considered as part of the Respondent’s
seventh affirmative defense.
18 The Respondent contends that I should discredit the reference in the email to its “erroneous claim
of impasse.” As there is no evidence to support this contention, I do not.
19 To the extent a reviewing authority disagrees with me, I find the Acting General Counsel presented
the correct legal framework and analysis, and that the Respondent did not meet its burden to prove
impasse based on a single issue. (GC Br. 25–27). See also Sacramento Union, 291 NLRB 552, 554
(1988), enfd. 888 F.2d 1394 (9th Cir. 1989). King Radio Corp., Inc. 172 NLRB 1051, 1066–1067 (1968).
JD(SF)–21–13
15
provide the Union with notice and an opportunity to bargain over the discretionary aspects of its
decision before proceeding to implement the decision.” Id. at 10 (emphasis in original). In the
instant case, the terminations had been decided and implemented. The Union’s demands to
bargain were post discipline. Thus even if the Board had decided to give Alan Ritchey,
retroactive application, it would not govern. The question before me is whether the Respondent 5
had a duty to bargain over the terminations and their effects after they had already been
implemented.20 The answer is yes. As the Acting General Counsel points out, the Union could
have bargained over things like severance packages, neutral recommendation letters, or benefits
payouts. (GC Br. 20–21.) Accordingly, I find the Respondent violated the Act as alleged by
refusing to bargain over the terminations. 10

C. Alleged Failure to Provide Information

Paragraph 10 of the complaint alleges that the Respondent violated Section 8(a)(1) and
(5) of the Act by failing to respond to the Union’s request for a list of the registered nurses 15
(RNs) in the emergency room that have been terminated within the last 3 years and the
reasons for the terminations.

As part of the obligation to bargain in good faith, both sides must furnish relevant
information upon request. NLRB v. Acme Indus. Co., 385 U.S. 432 (1967); Detroit Edison Co. v. 20
NLRB, 440 U.S. 301, 303 (1979). It is well settled that an employer must provide information
relevant to a union’s decision to file or process grievances. See Beth Abraham Health Services,
332 NLRB 1234 (2000); Ohio Power Co., 216 NLRB 987, 991 (1975), enfd. 531 F.2d 1381 (6th
Cir. 1976). If the information sought relates to the processing of a grievance, (or potential
grievance), the legal test is whether the information is relevant to the grievance and the 25
determination of relevancy is made based on a liberal, discovery type of standard. Acme, 385
U.S. at 437; Knappton Mar. Corp., 292 NLRB 236 (1988). In determining possible relevance,
the Board does not pass upon the merits, and the labor organization is not required to
demonstrate that the information is accurate, not hearsay, or even, ultimately reliable. U.S. Postal
Serv., 337 NLRB 820, 822 (2002). Like a flat refusal to bargain, “[t]he refusal of an employer to 30
provide a bargaining agent with information relevant to the union’s task of representing its
constituency is a per se violation of the Act” without regard to the employer”s subjective good or
bad faith. Brooklyn Union Gas Co., 220 NLRB 189, 191 (1975); Procter & Gamble Mfg. Co.,
237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979).
35
Information concerning employees in the bargaining unit and their terms and conditions
of employment, is deemed “so intrinsic to the core of the employer-employee relationship” as to
be presumptively relevant. Disneyland Park, 350 NLRB 1256, 1257 (2007); Sands Hotel &
Casino, 324 NLRB 1101, 1109 (1997). Presumptively relevant information must be furnished on
request to employees’ collective-bargaining representatives unless the employer establishes 40
legitimate affirmative defenses to the production of the information. Metta Electric, 349 NLRB
1088 (2007); U.S. Postal Service, 332 NLRB 635 (2000). However, when the requested
information does not concern subjects directly pertaining to the bargaining unit, such material is
not presumptively relevant, and the burden is upon the labor organization to demonstrate the

20 The Charging Party argues that there was a duty to bargain before the nurses’ terminations, but the
complaint does not allege this or any other unilateral change.
JD(SF)–21–13
16
relevance of the material sought. Disneyland Park, 350 NLRB at1257; Richmond Health Care,
332 NLRB 1304, 1305, n. 1 (2000).

The information the Union requested, at least with regard to terminations that occurred
after the Union was certified, concerns bargaining-unit members and is therefore presumptively 5
relevant. Any nurses who were terminated prior to the Union’s certification were obviously not
part of the bargaining unit. The Respondent asserts that because the information requested also
included termination of nurses prior to the Union’s certification, the Union must prove its
relevance.
10
There is no question that nurses held the same position before and after the Union’s
certification. The Court in Press Democrat Pub. Co. v. NLRB 629 F.2d 1320, 1326 (1980),
enforcing the Board’s order in relevant part, held that relevance is established where “nearly
identical work is being performed by unit and nonunit personnel.” Here, the work was identical,
not nearly identical. Moreover, the information was sought to assist the Union in representing a 15
unit employee following her termination. Information regarding nurses terminated prior to the
Union’s certification is clearly a subject that pertains to the bargaining unit’s obligation to
represent its members, regardless of when the Union was certified. See N Star Steel Co., 347
NLRB 1364, 1368 (2006); Public Service Co. of New Mexico v. NLRB, 692 F.3d 1068 (10th Cir.
2012), enfg. 356 NLRB No. 60 (2011). 20

The Respondent offered no evidence at hearing as to why it failed to supply the requested
information.21 The Respondent attempts to shield itself by asserting it provided information
responsive to 11 of the 12 enumerated requests in Matthews’ written request for information. (R.
Br. 21.) However, absent an explanation about the information it did not provide, this is not a 25
defense. The Respondent also argues that the information is confidential, and cites to East
Tennessee Baptist Hospital v. NLRB, 6 F.3d 1139, 1143–1144, (6th Cir. 1993), to argue it did not
need to provide it. The Respondent belatedly raised its confidentiality defense for the first time
in its post hearing brief, it was not litigated, and unsurprisingly neither the Charging Party nor
the Acting General Counsel addressed it in their briefs. Thus, Respondent is precluded from 30
relying on the alleged confidentiality concern.22 See NLRB v. Pfizer, Inc., 763 F.2d 887, 890–
891 (7th Cir. 1985); Anthony Motor Co., Inc, 314 NRLB 443, 451 (1994).

21 In its brief, the Respondent states that the parties discussed, off the record, the fact that Smorzewski
had supplied Mr. Matthews by email in August, 2012, with information concerning nurses terminated
from Fallbrook Hospital in the last 2 years, and relies on this to argue compliance. (R. Br. 21–22).
Despite the fact that Smorszewski was present throughout the hearing, the Respondent offered no
evidence to support its assertion. On May 7, 2013, the Charging Party filed a motion to strike this portion
of the brief, which I hereby enter into the record as ALJ Exh. 1. As I had already considered this section
of the brief, and decided to give it the evidentiary weight it is due, which is none, I did not grant the
motion. The Respondent’s argument that providing the information would be unduly burdensome is
premised on this argument, and I reject it accordingly.
22 Confidentiality claims must be timely raised so as to notify the Union of any confidentiality
concern and to bargain for an accommodation. West Penn Co., 339 NLRB 585 (2003); Detroit
Newspaper Agency, 317 NLRB 1071, 1072 (1995). Aside from the procedural error of failing to raise
this defense on time, the undue delay deprived the Union of the opportunity to bargain for
accommodation, assuming the information requested was confidential.
JD(SF)–21–13
17
Based on the foregoing, I find the Respondent violated the Act as alleged by refusing to
provide the information the Union requested.

D. The Respondent’s Affirmative Defenses
5
The Respondent asserted a number of affirmative defenses which are addressed in turn
below.

1. First Affirmative Defense: The Board’s Health Care Rule Violates Section 9(c) of the Act
10
The Respondent argues that the bargaining unit certified on May 24, 2012, is invalid and
unenforceable because it was constituted pursuant to the Board’s Health Care Rule in violation
of Section 9(c)(5) of the Act. The time to challenge the certification was during the
representation case. The Respondent entered into the consent election agreement, and did not
file objections to the election. 15

The Charging Party filed a motion in limine requesting that I preclude admission of
evidence on the issue. (GC Exh. 1(aa).) I denied the motion, though the Respondent did not
assert in its answer that it had new evidence to present. (GC Exh. 1(ah).) All representation
issues, including the challenge to the unit based on the purported unlawfulness of the Board’s 20
Health Care Rule, should have been raised and litigated in the prior representation proceeding.
Moreover, the rule’s validity is not at issue in this case because there is no reason to believe the
unit the Board certified would be inappropriate notwithstanding the Health Care Rule. See San
Miguel Hospital Corp., 697 F.3d 1181 (D.C. Cir. 2012). Finally, even assuming the
Respondent’s argument has merit, I am bound by the Board’s regulations. 25

2. Second Affirmative Defense: Oral Ad Hoc Agreement to Defer to Arbitration

The Respondent argues that pursuant to an ad hoc oral agreement, the complaint
allegations are subject to the exclusive jurisdiction of an arbitrator. At the hearing, I ruled that I 30
would not consider evidence regarding the oral agreement to arbitrate. The rationale for my
ruling was stated on the record and I incorporate it into this decision with the following
elaboration.

The Board has found deferral appropriate in instances where: (1) the dispute arose within 35
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 CBA’s arbitration
provision envisions a broad range of disputes; (4) the arbitration clause clearly encompasses the
dispute at issue; (5) the employer indicates a willingness to utilize arbitration to resolve the
dispute; and (6) the dispute is eminently well suited to such resolution. Collyer Insulated Wire 40
Co., 192 NLRB 837 (1971); United Technologies Corp., 268 NLRB 557, 558 (1984).

There has never been a collective-bargaining agreement between the parties in the instant
case, much less a long and productive bargaining relationship. As there is no collective-
bargaining agreement, it follows there is no arbitration clause. Instead, there is an alleged oral ad 45
hoc agreement that was first raised as an affirmative defense to the amended complaint. This
alone renders deferral to arbitration inappropriate. Deciding the merits of this defense would
require a “mini trial” to determine whether there was an ad hoc oral agreement and, if so, what
JD(SF)–21–13
18
its terms were. Such a determination, which would depend on parties’ recollections of what
precise words were uttered to make the agreement and establish its parameters, presents
significant problems. If the arbitrability issue was severed, adjudication of the complaint would
be delayed while awaiting a decision on whether there was a binding oral arbitration agreement.
If the arbitrability issue was not severed, the parties would potentially expend unnecessary 5
resources, some of them the public’s. These problems underscore why the Board has not
extended the Collyer line of cases to agreements such as the oral ad hoc oral agreement the
Respondent attempts to place at issue here. Whether or not the employer has indicated a
willingness to arbitrate the dispute, I find the dispute is eminently ill-suited to resolution through
arbitration. 10

3. Third, Fourth and Fifth Affirmative Defenses: Lack of Quorum and Invalid Appointments

The fourth affirmative defenses argue that the Board lacked a quorum when the
certification was issued, and it is therefore it is invalid. The fifth affirmative defense asserts the 15
present complaint is invalid for the same reason. The sixth affirmative defense challenges the
Board’s authority to appoint the Acting General Counsel based, in part, on lack of a quorum.
These arguments derive from the D.C. Circuit’s decision in Noel Canning, supra, and the Board
has rejected them. See Belgrove Post Acute Care Center, 359 NLRB No. 77, slip op. at fn. 1
(2013). Any arguments regarding the legal integrity of Board precedent are properly addressed 20
to the Board.

The sixth affirmative defense also avers that the Acting General Counsel is acting beyond
his authority based on the Federal Vacancies Reform Act. For the reasons set forth in my April
15, 2013, order denying the Respondent’s motion to dismiss, I find this argument lacks merit. 25

4. Sixth and Seventh Affirmative Defenses: Bargaining over Patient Care

The Respondent’s sixth and seventh affirmative defenses are that it had no duty to
bargain over the delivery of patient care, and the Union engaged in bad faith bargaining by 30
insisting on such bargaining. These defenses are intertwined with the duty to bargain argument
and are discussed in context above.

5. Eighth Affirmative Defense: Remedies Requested are Improper
35
The Respondent asserts in its eighth affirmative defense that the remedies requested in
the complaint are improper. Specifically, the Respondent argues that an order for the Hospital to
meet with the Union concerning the terminations of Robinson and Sandwell “would be
tantamount to ordering the Hospital to accept the Union’s proposals on “Discharge and
Discipline” and “Grievance Procedure” in violation of Section 8(d) of the Act. This argument, 40
plainly based on the misapprehension that the complaint alleges unlawful unilateral change, fails
for the reasons set forth in my discussion about the duty to bargain about the terminations.

6. Ninth Affirmative Defense: Discontinuity of Representation
45
The Respondent’s ninth affirmative defense asserts that subsequent to the election, the
Charging Party affiliated with another organization, and as a consequence there is a lack of
continuity of representation.
JD(SF)–21–13
19

The affiliation occurred effective January, 1, 2013. Accordingly, this argument has no
bearing on complaint allegations occurring prior to that date.

As the party asserting lack of continuity of representation, the Respondent has the burden 5
of proof. Sullivan Bros. Printers, 317 NLRB 561, 562 (1995). In the context of an affiliation,
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 entirely different
union as the employees' representative.” CPS Chemical Co., 324 NLRB 1018, 1020 (1997); See
also May Department Stores Co., 289 NLRB 661, 665 (1988), enfd. 897 F.2d 221 (7th Cir. 10
1990); Raymond F. Kravis Center for the Performing Arts, 351 NLRB 143, 145–147 (2007),
enfd. 550 F.3d 1183 (DC Cir. 2008). In making this assessment, the Board looks at the totality
of the circumstances. Mike Basil Chevrolet, 331 NLRB 1044 (2000). Relevant factors include:

[C]ontinued leadership responsibilities by the existing union officials; the perpetuation of 15
membership rights and duties, such as eligibility for membership, qualification to hold
office, oversight of executive council activity, the dues/fees structure, authority to change
provisions in the governing documents, the frequency of membership meetings, the
continuation of the manner in which contract negotiations, administration, and grievance
processing are effectuated; and the preservation of the certified union's physical facilities, 20
books, and assets.

Western Commercial Transport, 288 NLRB 214, 217 (1988). The Supreme Court recognized in
NLRB v. Food & Commercial Workers Local 1182 (Seattle-First National Bank), 475 U.S. 192,
199 fn. 5 (1986) that “increased financial support and bargaining power” are “ordinary, valid 25
reasons for affiliations and mergers.” See also Sullivan Bros. Printers, 317 NLRB 561, 562–563
(1995).

As set forth fully in the statement of facts, the affiliation has changed virtually nothing
with regard to the Union’s leadership, the manner in which it represents its members, or its day-30
to-day operations. The Union operates as an autonomous entity before and after the affiliation.

The only factor the Respondent points to in support of its discontinuity argument is the
change in the Union’s books and/or assets based on its financial support to the NUHW in
furtherance of its efforts to organize roughly 45,000 Kaiser Permanente nurses. The evidence 35
shows that the CNA has loaned the NUWH between $1-million and $1.2-million a month
between January and April, 2013, to support its campaign to organize the nurses at Kaiser
Permanente.23

23 The Respondent requests an adverse inference based on the Union’s failure to produce loan
documents requested pursuant to subpoena. The Union represented that there are not any loan
documents. The Respondent argues this strains credibility. Considering that the affiliation agreement
spells out the loan repayment, however, I have no reason to believe there are additional documents. The
Respondent also requests an adverse inference based on the Union’s failure to turn over banking
documents requested. I find the Union complied with the subpoena request by turning over documents
showing the electronic transfers from the CNA to the NUWH as described in the transcript at pp. 447–
448.
JD(SF)–21–13
20
The Respondent asserts that “depletion of the CNA resources” to fund the Kaiser
campaign changes the character of the Union. Though aware of the money the CNA transferred
to the NUWH from Lighty’s testimony the previous day, after its last witness testified the
following day, the Respondent sought to call two additional witnesses to refute Lighty’s
testimony. I denied the request on timeliness grounds and invited the Respondent to make an 5
offer of proof. The offer of proof was that the witness testimony would contradict Lighty’s
testimony that it is in the interest of the CNA to fund the election campaign of the NUHW in the
Kaiser Permanente election matter. I decline the Respondent’s request to reconsider my ruling,
and I reject the offer of proof. Even if it is considered, however, I find the CNA’s actions of
loaning money to the NUWH does not change the identity of the CNA. The Board gives “little 10
weight” to the assets/books factor, particularly where, as here, the Respondent has not shown
that fewer resources would be committed to their representational obligations than prior to the
affiliation. Deposit Telephone Co., 349 NLRB 214, 223 (2007); Independence Residences, Inc.
358 NLRB No. 42 (2012), slip op. at 27. There was no evidence presented to show that the
union members are not being represented at the same level as before the affiliation. To assume 15
that the Union changed the amount of funding it devotes to representing its members by virtue of
the loans it provides to the NUWH would be speculative.

The Respondent further points to the Ninth Circuit’s decision in SEIU v. NUHW, No. 10-
16549 (March 26, 2010), assessing fines to NUWH officers for violations of the Labor 20
Management Reporting and Disclosure Act, to argue that the nurses who chose the CNA would
believe that affiliation with an organization with such a sullied reputation is substantially
dramatic to change the character of the CNA. Aside and apart from significant foundational
problems with this argument, of all the nurses who testified, none were asked about this. The
Respondent also asserts that the nurses could potentially find themselves striking in solidarity 25
with the NUWH. These speculative arguments are insufficient to sustain the Respondent’s
burden of proof.

CONCLUSIONS OF LAW
30
By failing and refusing to bargain with the Union in good faith over the terms of a
collective-bargaining agreement, failing and refusing to bargain with the Union over the
terminations of unit employees Robinson and Maxwell, and failing to furnish relevant
information to the Union, in violation of Section 8(a)(1) and (5) of the Act, the Respondent has
engaged in unfair labor practices affecting commerce within the meaning of and Section 2(6) and 35
(7) of the Act.
REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 40
the policies of the Act.

The Charging Party and the Acting General Counsel request remedies in addition to those
the Board generally grants for the above violations. The Board has broad discretion to fashion a
just remedy to fit the circumstances of each case it confronts. Maramont Corp., 317 NLRB 1035, 45
1037 (1995). The Supreme Court has interpreted Section 10(c) as vesting the Board with
discretion to devise remedies that effectuate the policies of the Act. Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 898–899 (1984).
JD(SF)–21–13
21

The complaint requests that the notice to employees of the violations found here be read
to its employees at a mandatory meeting during working hours. I decline to grant this enhanced
remedy.
5
To support the argument for a notice reading, the Charging Party cites, HTH Corp., 356
NLRB No. 182 (2011), and Homer D. Bronson Co., 349 NLRB 512, 515-516 (2007), enfd. mem.
273 Fed.Appx. 32 (2d Cir. 2008). HTH Corp. involved multiple rounds of litigation, including a
previous order to set aside an election. In Homer D. Bronson Co., the company president gave
multiple unlawful speeches among many other violations during the course of a union organizing 10
campaign. The Acting General Counsel cites to Excel Case Ready, 334 NLRB 4 (2001), a case
involving discharges and other coercive behavior during an organizing campaign, and Federated
Logistics and Operations, 340 NLRB 255 (2003), enfd. 400 F.3d 920 (D.C. Cir. 2005), where
there were extensive and serious unfair labor practices that pervaded the unit and had a long-term
coercive effect on the unit during an organizing drive. Although I find the violations the 15
Respondent committed are serious, they are not “so numerous, pervasive, and outrageous” such
that additional remedies are required “to dissipate fully the coercive effects of the unfair labor
practices found.” Fieldcrest Cannon, Inc., 318 NLRB 470, 473 (1995).

The complaint also requests an extended bargaining order under Mar-Jac Poultry, 136 20
NLRB 785 (1962). The Respondent did not provide argument as to why Mar-Jac Poultry should
not apply. Because the circumstances of this case present inequities similar to those in Mar-Jac,
I find it applies and will recommend the requested remedy of a 6-month extension of the
certification year.
25
The Charging Party requests litigation costs, asserting the Respondent’s defenses are
frivolous. While I found the Respondent’s defenses meritless, it cannot be said they are entirely
frivolous. I therefore declined to grant this requested remedy.

The Charging Party requests negotiation costs based on the Respondent’s egregious 30
conduct. It is clear to me there was no intent to bargain, and the Respondent’s continued
attempts to challenge the Board’s certification make it clear it does not welcome the Union. I
find, however, that the conduct during bargaining here is not as egregious as the employer’s
conduct in Unbelievable, Inc., 318 NLRB 857, 858 (1995), enf. denied in part, 118 F.3d 795
(D.C. Cir. 1997), Harowe Servo Controls, 250 NLRB 958 (1980), or other cases where the 35
Board has awarded this remedy. If similar conduct had occurred during previous negotiations
between the parties, I would come to a different conclusion. Though a close call, I decline to
grant this requested remedy.

Having found the Respondent unlawfully refused to bargain in good faith with the Union 40
to establish a collective-bargaining agreement, the Respondent must forthwith bargain in good
faith with the Union, on request, as the exclusive representative of the unit and if an
understanding is reached, embody the understanding in a signed agreement.

Having found the Respondent unlawfully refused to bargain with the Union over the 45
terminations of unit members Robinson and Sandwell, the Respondent must, on request, bargain
about the terminations of Robinson, and Sandwell.

JD(SF)–21–13
22
Having found the Respondent unlawfully refused to provide the Union with information
regarding emergency room nurses who were terminated during the last 3 years, Respondent shall
be ordered to furnish this information to the Union.

In accordance with the Board’s decision in J. Piccini Flooring, 356 NLRB No. 9, slip op. 5
at. 5–6 (2010), I shall recommend that the Respondent be required to distribute the attached
notice to members and employees electronically, if it is customary for the Respondent to
communicate with employees and members in that manner. Also in accordance with that
decision, the question as to whether a particular type of electronic notice is appropriate should be
resolved at the compliance stage. Id, slip op. at p. 3. See Teamsters Local 25, 358 NLRB No. 15 10
(2012).

I further recommend that the Respondent be ordered to cease and desist from refusing to
bargain in good faith with the Union over the terms of a collective-bargaining agreement and
termination of unit members, and from refusing to provide the Union with information it requests 15
that is relevant to its duties as the bargaining unit’s representative.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.24
20
ORDER

The Respondent, Fallbrook Hospital, Fallbrook, California, its officers, agents,
successors, and assigns, shall
25
1. Cease and desist from

(a) Failing and refusing to bargain with the Union as the exclusive representative of
the following bargaining unit (unit):
30
All full-time, regular part-time, and per diem registered nurses, including those who
serve as relief charge nurses, employed by the Respondent at its facility located at
624 East Elder Street, Fallbrook, California; excluding all other employees,
managers, confidential employees, physicians, employees of outside registries and
other agencies supplying labor to the Respondent, already represented employees, 35
guards and supervisors as defined in the Act.

(b) failing and refusing to bargain over unit employees’ terms and conditions of work,
including over terminations.
40
(c) failing and refusing to supply the Union with requested information.

(d) in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act.

24 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.
JD(SF)–21–13
23

2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) On request, bargain with the Union as the as the exclusive representative of the
unit over the terms of a collective-bargaining agreement and if an understanding is reached, 5
embody the understanding in a signed agreement.

(b) On request, bargain with the Union as the exclusive representative of the unit
over unit employees’ terms and conditions of work, including the terminations of Robinson and
Sandwell. 10

(c) Furnish the Union with the following information requested in its August 2, 2012
letter: The list of termination of RNs in the [emergency room] for the last 3 years with reason for
termination of each RN.
15
(d) Within 14 days after service by the Region, post at its facility in Fallbrook
California, copies of the attached notice marked “Appendix.”25 Copies of the notice, on forms
provided by the Regional Director for Region 21, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily 20
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily 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 covered by any other material. In the event that, during the pendency of these 25
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 the Respondent at any time since
July 3, 2012.
30
(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 the Respondent has taken to comply.

Dated, Washington, D.C. May 16, 2013 35

____________________
Eleanor Laws
Administrative Law Judge

25 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 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 refuse to bargain in good faith with the California Nurses Association/National
Nurses Organizing Committee in the unit described below over the terms of a collective-
bargaining agreement:

All full-time, regular part-time, and per diem registered nurses, including those who serve
as relief charge nurses, employed by the Respondent at its facility located at 624 East
Elder Street, Fallbrook, California; excluding all other employees, managers, confidential
employees, physicians, employees of outside registries and other agencies supplying
labor to the Respondent, already represented employees, guards and supervisors as
defined in the Act.

WE WILL NOT refuse to bargain in good faith with the California Nurses Association/National
Nurses Organizing Committee over bargaining unit employees’ terms and conditions of work,
including over terminations.

WE WILL NOT refuse to provide with the California Nurses Association/National Nurses
Organizing Committee the information it requests that is necessary and relevant to the
performance of its duties as the exclusive collective bargaining representative of the employees
in the above unit.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL, on request, bargain in good faith with the California Nurses Association/National
Nurses Organizing Committee over the terms of a collective-bargaining agreement and put in
writing and sign any agreement reached on terms and conditions of employment for our
employees in the bargaining unit

WE WILL, on request, bargain in good faith with the California Nurses Association/National
Nurses Organizing Committee over bargaining unit employees’ terms and conditions of work,
including over terminations.

WE WILL provide the California Nurses Association/National Nurses Organizing Committee
with the following information requested in its August 2, 2012 letter: The list of termination of
RNs in the [emergency room] for the last 3 years with reason for termination of each RN.

Fallbrook Hospital Corporation d/b/a Fallbrook
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.

888 South Figueroa Street, 9th Floor, Los Angeles, CA 90017-5449
(213) 894-5200, Hours: 8:30 a.m. to 5 p.m.

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, (213) 894-5184.