Virginia Mason v. NLRB ( 2009 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    VIRGINIA MASON MEDICAL CENTER,      
    Petitioner,          No. 07-73851
    v.
           NLRB No.
    19-CA-29046
    NATIONAL LABOR RELATIONS
    BOARD,                                      OPINION
    Respondent.
    
    On Petition for Review of an Order of the
    National Labor Relations Board
    Argued and Submitted
    February 6, 2009—Seattle, Washington
    Filed February 25, 2009
    Before: Betty B. Fletcher, Pamela Ann Rymer and
    Raymond C. Fisher, Circuit Judges.
    Opinion by Judge B. Fletcher
    2313
    VIRGINIA MASON MEDICAL CENTER v. NLRB           2315
    COUNSEL
    Mark A. Hutcheson, Jennifer K. Shubert, Davis Wright Tre-
    maine LLP, for petitioner Virginia Mason.
    Linda Dreeben, Robert Englehart, Christopher YoungNational
    Labor Relations Board, for respondent National Labor Rela-
    tions Board.
    OPINION
    B. FLETCHER, Circuit Judge:
    Virginia Mason Medical Center (“Virginia Mason”)
    appeals the National Labor Relation Board’s (“NLRB” or “the
    Board”) finding that it committed an unfair labor practice.
    The Board found that Virginia Mason unlawfully withdrew
    recognition from the United Staff Nurses Union Local 141
    (“the Union”) within the protected certification year period.
    Virginia Mason argues that the certification year elapsed prior
    to its withdrawal of recognition. We have jurisdiction pursu-
    ant to 
    29 U.S.C. §§ 160
    (e) and (f), and we affirm.
    FACTS
    Virginia Mason operates twenty health care facilities in the
    Puget Sound region. The facility at issue in this appeal is the
    2316      VIRGINIA MASON MEDICAL CENTER v. NLRB
    inslow Clinic, located on Bainbridge Island. The Union won
    certification as the representative of unit employees at the
    Winslow Clinic on December 2, 2000. Virginia Mason tested
    the certification by refusing to bargain with the Union. The
    Board found against Virginia Mason, and held that it must
    bargain with the Union. The remedial order stated:
    To ensure that the employees are accorded the ser-
    vices of their selected bargaining agent for the period
    provided by law, we shall construe the initial period
    of the certification as beginning the date the Respon-
    dent begins to bargain in good faith with the Union.
    On May 28, 2002, the D.C. Circuit denied Virginia Mason’s
    petition for review and granted the Board’s cross-appeal for
    enforcement of the remedial order. Virginia Mason submitted
    to the court’s judgment and began compliance with the terms
    of the remedial order.
    On June 25, 2002, the Union requested information from
    Virginia Mason, which it timely supplied. On August 28, the
    Union requested a meeting to begin negotiations and sug-
    gested three possible dates. Two days later Virginia Mason
    accepted October 1, 2002, as the date of the first bargaining
    meeting.
    The parties met twenty-two times in the following months.
    On September 23, 2003, the clinic manager received a decer-
    tification petition signed by eight of the nineteen unit mem-
    bers. The final meeting occurred on September 26, at which
    time Virginia Mason withdrew recognition from the Union
    because it believed that the Union no longer had majority sup-
    port. The Union then filed an unfair labor practice charge
    alleging that Virginia Mason had hired and fired employees
    based on whether they supported the Union, had encouraged
    a decertification campaign, and had refused to bargain with
    the Union in good faith. The NLRB’s General Counsel
    reviewed this charge, and then filed a complaint alleging that
    VIRGINIA MASON MEDICAL CENTER v. NLRB             2317
    Virginia Mason’s conduct violated the National Labor Rela-
    tions Act, 
    29 U.S.C. § 141
     et seq.
    At the end of the Board’s case in chief, the ALJ raised sua
    sponte the issue of whether Virginia Mason’s withdrawal of
    recognition occurred during the protected certification year.
    Virginia Mason argued that the year began either when the
    D.C. Circuit affirmed the Union’s certification (May 28,
    2002), or when it first responded to the Union’s information
    request (June 2002). The ALJ disagreed and found that the
    certification year period began on October 1, 2002, when the
    parties had their first face-to-face meeting. The ALJ con-
    cluded that Virginia Mason had violated 
    29 U.S.C. § 158
     by
    withdrawing recognition on September 26, 2003, within the
    certification year period. The Board affirmed the ALJ’s find-
    ings and adopted his recommended order in a 2/1 decision.
    DISCUSSION
    “The Chevron doctrine requires that this court defer to the
    NLRB’s interpretation of the NLRA if its interpretation is
    rational and consistent with the statute.” UFCW, Local 1036
    v. NLRB, 
    307 F.3d 760
    , 766-67 (9th Cir. 2002); see Chevron
    USA, Inc. v. Natural Resources Def. Council, Inc., 
    467 U.S. 837
    , 843-44 (1984). In addition, the Board’s interpretation of
    its own remedial order “enjoys a good deal of discretion.”
    NLRB v. Nat’l Med. Hosp. of Compton, 
    907 F.2d 905
    , 909
    (9th Cir. 1990).
    Once a labor union is certified as the exclusive bargaining
    representative of a unit of employees, the union is entitled to
    a non-rebuttable presumption of majority status for a reason-
    able time, typically one year. 
    Id. at 907
    . During this “certifica-
    tion year” period, the employer must recognize and bargain
    with the union; it may not withdraw recognition. 
    Id.
     A per-
    ceived loss of majority status, as demonstrated through a
    decertification petition or otherwise, does not entitle the
    2318        VIRGINIA MASON MEDICAL CENTER v. NLRB
    employer to withdraw recognition during this year. Brooks v.
    NLRB, 
    348 U.S. 96
    , 103 (1954).
    A.     Timing of the Certification Year
    [1] Virginia Mason withdrew recognition from the Union
    on September 26, 2003, but the certification year did not end
    until October 1, 2004 — one year from the parties’ first bar-
    gaining session. Virginia Mason’s contention that the certifi-
    cation year started when the D.C. Circuit certified the Union
    is plainly wrong. It is within the Board’s discretion to decide
    when the one-year period should start. Compton, 
    907 F.2d at
    909 (citing Brooks, 
    348 U.S. at 104
    ). In this case, the Board’s
    remedial order clearly stated that, “we shall construe the ini-
    tial period of the certification as beginning the date the
    Respondent begins to bargain in good faith with the Union.”
    (Emphasis added.) Indeed, this language is “more or less stan-
    dard” in remedial orders. Compton, 
    907 F.2d at 907
    . Virginia
    Mason cannot avail itself of the argument that it lacked notice
    as to when the certification year would start.
    [2] Furthermore, providing requested information to a
    union does not constitute bargaining. It is true that responding
    to information requests is a requisite component of good faith
    bargaining, but it is not sufficient in and of itself. The Board
    has previously held that the parties must actually hold a bar-
    gaining meeting in order to trigger the certification year. Van
    Dorn Plastic Mach. Co., 
    300 N.L.R.B. 278
    , 278 (1990), aff’d,
    
    939 F.2d 402
     (6th Cir. 1991). “If the certification year were
    to begin when an employer furnishes information, a union
    could, in effect, be penalized for requesting information prior
    to negotiations, because that could result in less time for
    negotiations than if the union had not requested the informa-
    tion.” Id. at 278. We hold that the certification year started
    with the first bargaining meeting, and not when Virginia
    Mason complied with just one component of bargaining.
    [3] Finally, we reject Virginia Mason’s argument that it
    should be excused from penalty because it withdrew recogni-
    VIRGINIA MASON MEDICAL CENTER v. NLRB           2319
    tion just four days before the certification year expired. There
    is no de minimis exception for technical noncompliance with
    Board orders. We are especially wary of such arguments
    when employers invoke employee Section 7 rights as justifi-
    cation for an unfair labor practice. See Brooks, 
    348 U.S. at 103
     (“To allow employers to rely on employees’ rights in
    refusing to bargain with the formally designated Union is not
    conducive to [industrial peace], it is inimical to it.”). LTD
    Ceramics, Inc., 
    341 N.L.R.B. 86
     (2004), is inapposite,
    because there the employer waited until after the expiration of
    the certification year to withdraw recognition from the union.
    We therefore affirm the Board’s finding that Virginia
    Mason committed an unfair labor practice by withdrawing
    recognition from the Union during the certification year.
    B.   Inexcusable Delay
    [4] A union’s non-rebuttable presumption of majority status
    during the certification year may be lost if the union causes
    an inexcusable delay in bargaining. Compton, 
    907 F.2d at 909
    . Inexcusable delay is an affirmative defense to an unfair
    labor practice charge, and the burden of proof is on the party
    seeking to invoke this defense. 
    Id.
     (looking to the evidence
    proffered by the employer on delay); c.f. Flying Food Group,
    Inc. v. NLRB, 
    471 F.3d 178
    , 183 (D.C. Cir. 2006) (finding
    that loss of majority status is an affirmative defense to a pre-
    mature withdrawal charge).
    [5] Virginia Mason has offered no evidence of bad faith
    delay by the Union, other than the bare assertion that four
    months is an inexcusably long time to wait to start bargaining.
    We agree with the Board’s finding that four months is a rea-
    sonable amount of time for the Union to re-establish contacts
    with the unit employees, and to process the information
    received from Virginia Mason. Therefore, we hold that the
    Union was entitled to retain its presumption of majority status
    during the certification year.
    2320      VIRGINIA MASON MEDICAL CENTER v. NLRB
    CONCLUSION
    The decision of the NLRB is hereby AFFIRMED. We
    remand the matter to the Board to oversee implementation of
    the affirmative bargaining order contained in its decision.