United States v. 2009-03-10 | 07-73851 | VIRGINIA MASON V. NLRB | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 VIRGINIA MASON MEDICAL CENTER, No. 07-73851
Petitioner, NLRB No.
v. 19-CA-29046
NATIONAL LABOR RELATIONS ORDER 
BOARD, AMENDING
Respondent. OPINION AND
AMENDED
OPINION

On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Argued and Submitted
February 6, 2009—Seattle, Washington
Filed February 25, 2009
Amended March 10, 2009
Before: Betty B. Fletcher, Pamela Ann Rymer and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge B. Fletcher
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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.
ORDER
The opinion filed February 25, 2009, slip op. 2313, is
hereby amended as follows:
1. In the caption on slip op. 2313, replace “On Petition for
Review of an Order of the National Labor Relations
Board” with “On Petition for Review and Cross-
Application for Enforcement of an Order of the National
Labor Relations Board”
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2. Line 2 on slip op. 2320, replace “AFFIRMED” with “EN-
FORCED”
3. Line 6 on slip op. 2318, replace “October 1, 2004” with
“October 1, 2003”
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
Winslow 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.
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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’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
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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
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, 2003 — 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-
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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-
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.
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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.
CONCLUSION
The decision of the NLRB is hereby ENFORCED. We
remand the matter to the Board to oversee implementation of
the affirmative bargaining order contained in its decision.
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