February 25, 2009; see amended opinion filed March 10, 2009
On Petition for Review of an Order of the National Labor Relations Board. NLRB No. 19-CA-29046.
The opinion of the court was delivered by: B. Fletcher, Circuit Judge
Argued and Submitted February 6, 2009 -- Seattle, Washington
Before: Betty B. Fletcher, Pamela Ann Rymer and Raymond C. Fisher, Circuit Judges.
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 pursuant to 29 U.S.C. §§ 160(e) and (f), and we affirm.
Virginia Mason operates twenty health care facilities in the Puget Sound region. The facility at issue in this appeal is the 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 services 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 Respondent 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 suggested 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 decertification petition signed by eight of the nineteen unit members. 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 support. 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 Relations 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 concluded that Virginia Mason had violated 29 U.S.C. § 158 by withdrawing ...