Mori Pam Rubin v. Hospital of Barstow Inc
Filing
18
MINUTES OF Motion Hearing held before Judge Christina A. Snyder: The Court GRANTS Petitioner Mori Pam Rubin, the Director of Region 31 of the National Labor Relations Board's Petition for Interim Injunctive Relief Under Section 10(j) of the National Labor Relations Act 2 . (Made JS-6. Case Terminated.) Court Reporter: Laura Elias. (gk)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
Present: The Honorable
Date
July 29, 2013
CHRISTINA A. SNYDER
Catherine Jeang
Deputy Clerk
Laura Elias
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants
Juan Gonzalez
Edna Palencia
Robert Rosenthal
Attorneys Present for Interested Party
Nicole Daro
Proceedings:
I.
MOTION RE: PETITION FOR TEMPORARY INJUNCTION
UNDER SECTION 10(J) OF THE NATIONAL LABOR
RELATIONS ACT (Docket #2, May 22, 2013)
INTRODUCTION
Petitioner Mori Pam Rubin, the Director of Region 31 of the National Labor
Relations Board (hereafter “the Regional Director” and “the NLRB,” respectively),
initiated this action on May 22, 2013. The Regional Director seeks a temporary
injunction restraining the Hospital of Barstow (“Barstow”) from engaging in unfair labor
practices related to its negotiations with the California Nurses Association (“CNA”).
CNA has initiated proceedings against Barstow before the NLRB regarding the same
allegedly unfair labor practices, and the Regional Director has brought this action to
obtain interim relief pending the resolution of those proceedings.
The NLRB filed its application for a temporary injunction on May 22, 2013.
Barstow did not file a timely opposition to the petition, and the Court granted a temporary
restraining order in the Regional Director’s favor on June 24, 2013. Barstow filed an
opposition on July 1, 2013, and the NLRB filed a reply on July 8, 2013. The Court now
considers whether to convert its temporary restraining order into a preliminary injunction.
After considering the parties’ arguments, the Court finds and concludes as follows.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
II.
Date
July 29, 2013
BACKGROUND
Respondent Barstow operates a hospital in Barstow, California, and employs
roughly seventy-five registered nurses (“RNs”). CNA is labor organization, and on June
29, 2012, the NLRB certified CNA as the exclusive representative of the Barstow RNs
for purposes of collective bargaining.
Prior to CNA’s certification, representatives from CNA and Barstow met to discuss
an agreement governing labor organizing by the CNA and the negotiation of a collective
bargaining agreement. These representatives discussed certain principles and guidelines
related to these topics, and purportedly reached a general agreement (“the Proposed
Labor Agreement”). The Proposed Labor Agreement was reduced to writing, but never
executed in writing. Barstow claims, however, that CNA representatives orally agreed to
the Proposed Labor Agreement and that the parties behaved as if it were governing their
conduct. The purported oral execution of the Proposed Labor Agreement occurred in
April 2012.
Negotiations over the terms of a collective bargaining agreement between CNA
and Barstow commenced in July 2012. During these negotiations, Barstow’s chief
representative refused to discuss or present any proposals on behalf of Barstow before
receiving all of CNA’s economic and non-economic proposals. This position was
repeated during several bargaining sessions. Additionally, Barstow’s chief representative
abruptly left or cancelled bargaining sessions before reaching an impasse on any specific
issues, and on one occasion, failed to attend a session or send a replacement Barstow
representative with authority to negotiate.
While these negotiations were ongoing, on September 2, 2012, Barstow announced
a new policy regarding employee certification for advanced cardiac life support training.
This policy required several of Barstow’s RNs to obtain new training, and reduced the
amount of compensation previously provided by Barstow for completing this sort of
training. Barstow implemented these changes without bargaining with CNA or even
notifying CNA.
Negotiations moved slightly forward in October 2012, when Barstow began
providing CNA with proposals and counter-proposals during collective bargaining
sessions. On December 28, 2012, however, negotiations ceased due to a disagreement
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Date
July 29, 2013
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
regarding Assignment Despite Objection forms (“ADO forms”). ADO forms are used by
RNs at Barstow to document their objections to particular assignments when they believe
the assignment could compromise patient care or the RN’s license. During negotiations
on December 28, 2012, Barstow’s chief representative stated that he would no longer
bargain with CNA unless the RNs stopped using ADO forms. Barstow’s representative
refused to bargain over the issue, and ended the negotiations minutes after they began.
On January 11, 2013, CNA and Barstow participated in a mediation, but shortly after the
session began, Barstow’s representative broke off negotiations, asserting that he refused
to bargain as long as the ADO forms were being used. No negotiations have taken place
since the January 11, 2013 meditation, and Barstow has refused to schedule future
bargaining dates.
Based on these events, CNA initiated unfair labor practice proceedings before the
NLRB. A hearing in the matter took place before Administrate Law Judge Jay Pollack on
June 18 – 20, 2013, and on June 27, 2013. The hearing and evidentiary record is now
closed, but no decision has been issued.
III.
LEGAL STANDARD
Section 10(j) of the National Labor Relations Act (“NLRA”), under which the
Regional Director is proceeding in this case, grants the NLRB authority to seek
temporary relief from a district court pending its resolution of an unfair labor practice
charge. 29 U.S.C. § 160(j); McDermott v. Ampersand Pub., LLC, 593 F.3d 950, 957 (9th
Cir. 2010). “The district court is given authorization to grant such temporary relief or
restraining order as it deems just and proper, keeping in mind that the underlying purpose
of Section 10(j) is to protect the integrity of the collective bargaining process and to
preserve the Board's remedial power while it processes the charge.” McDermott, 593
F.3d at 957 (internal citations and quotation marks omitted).
To determine whether an injunction pursuant to Section 10(j) should issue, a
district court considers the traditional criteria governing the issuance of an injunction.
Frankl v. HTH Corp., 650 F.3d 1334, 1355 (9th Cir. 2011). “Thus, when a Regional
Director seeks § 10(j) relief, he must establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Id.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Date
July 29, 2013
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
Regarding the likelihood of success on the merits, a district court considers “the
probability that the [NLRB] will issue an order determining that the unfair labor practices
alleged by the Regional Director occurred and that [a Circuit Court of Appeals] would
grant a petition enforcing that order, if such enforcement were sought.” Id. The Ninth
Circuit has explained that a Regional Director initiating a Section 10(j) proceeding may
satisfy this requirement “by producing some evidence to support the unfair labor practice
charge, together with an arguable legal theory.” Id. Additionally, “irreparable injury is
established if a likely unfair labor practice is shown along with a present or impending
deleterious effect of the likely unfair labor practice that would likely not be cured by later
relief.” Id. at 1362. If a likelihood of irreparable harm and success on the merits is
established, “the [Regional Director] will have established that preliminary relief is in the
public interest,” and there is considerable support for a finding that the equities weigh in
favor of an injunction. Id. at 1365.
IV.
ANALYSIS
A.
Likelihood of Success on the Merits
The Regional Director argues that by engaging in the conduct described above,
Barstow has engaged in unfair labor practices under Sections 8(a)(1) and 8(a)(5) of the
NLRA. 29 U.S.C. §§ 158(a)(1), (5). In particular, the Regional Director contends that
the following were unfair labor practices: (1) Barstow’s refusal and delay in exchanging
and propounding proposals, (2) Barstow’s implementation of a new training policy
without bargaining with CNA, (3) Barstow’s refusal to continue negotiations until its
RNs agree to stop using ADO forms, and (4) Barstow’s failure—in the totality of the
circumstances—to negotiate in good faith.
The Court finds that this conduct amounts to an unfair labor practice. First, as
Barstow does not contest, it has refused to bargain with CNA in good faith. Several facts
weigh in favor of this finding, particularly Barstow’s refusals and delay in exchanging
proposals, and Barstow’s abrupt cancellation or failure to appear for bargaining sessions.
See Byrant & Stratton Business Institute, 321 NLRB 1007, 1042 (1996), enforced 140
F.3d 169 (2d Cir. 1998); Camelot Terrace, 357 NLRB No. 161, 2011 WL 7121892, at
*10 (Dec. 30, 2011). Additionally, in a recent case involving materially identical
facts—including the same charging union and the same chief negotiator acting on behalf
of an employer—Administrative Law Judge Eleanor Laws concluded that similar conduct
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Date
July 29, 2013
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
amounted to an unfair labor practice. Fallbrook Hospital Corporation d/b/a Fallbrook, JD
(SF)-21-13, Case 21-CA-090211 (NLRB Div. of Judges). This decision weighs in favor
of finding that the Regional Director will achieve similar success against Barstow.
Nelson v. Western Plant Services, Inc. 1996 WL 438778 (W.D. Wash. 1996).
Second, as Barstow again does not contest, it was an unfair labor practice for
Barstow to announce a new training policy without first bargaining with CNA. It is wellestablished that an employer violates Section 8(a)(5) if it unilaterally alters the terms or
conditions of employment without bargaining to an impasse. Litton Financial Printing
Div. v. NLRB, 501 U.S. 190, 198 (1991); NLRB v. Auto Fast Freight, Inc., 793 F.2d
1126, 1129 (9th Cir. 1986). Consequently, decisions of the NLRB have concluded that
changes in job requirements and qualifications are mandatory subjects of bargaining, as
are changes in employer policy that affect incidental benefits conferred on employees. In
fact, benefits as apparently trivial as free coffee or boxes of laundry detergent have been
found to be mandatory subjects of bargaining. In Re Pac. Micronesia Corp., 337 NLRB
469, 480 (2002); Beverly Enterprises, 310 NLRB 222 (1993). The changes instituted by
Barstow regarding certification and compensation for mandatory training had a
straightforward impact on compensation and the terms of employment, and were
therefore mandatory subjects of bargaining. Consequently, Barstow’s failure to bargain
prior to implementing these changes was an unfair labor practice.
Third, Barstow’s refusal to negotiate with CNA until the RNs ceased using the
ADO forms is an unfair labor practice. While Barstow argues that it has a legitimate and
important interest in preventing RNs from using ADO forms, this interest does not permit
Barstow to abandon labor negotiations until CNA accedes to its demands. Barstow may
not condition its participation in the collective bargaining process upon CNA’s
acquiescence to its demands regarding permissive subjects of bargaining, such as the use
of ADO forms. NLRB v. Borg-Warner Corp., 356 U.S. 342, 349 (1958); Smurfit-Stone
Container Enterprises, 357 NLRB No. 144 (Dec. 22, 2011) (“ It is a violation of Section
8(a)(5) for an employer to insist on a union’s consent to a nonmandatory proposal as a
condition of reaching agreement on mandatory bargaining subjects.”).
Accordingly, the Court finds that it is likely that the NLRB will conclude that
Barstow has engaged in unfair labor practices. Barstow presents several arguments,
which purport to require the Court to conclude that CNA will likely not prevail in the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Date
July 29, 2013
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
underlying administrative proceeding even if Barstow conducted violated Sections
8(a)(1) and 8(a)(5). As explained below, none of these arguments are availing.
First, Barstow argues that CNA will not prevail because it agreed to resolve the
underlying labor practices dispute through binding arbitration, not through NLRB
proceedings. CNA purportedly agreed to binding arbitration when, according to Barstow,
it orally executed the Proposed Labor Agreement. In support of this argument, Barstow
correctly points out that the Proposed Labor Agreement contains a binding arbitration
clause. See Proposed Labor Agreement, Carmody Decl. Ex. A, § 11.
This argument is not persuasive. Crucially, the Proposed Labor Agreement
explicitly states that it must be executed in writing:
Neither party to this Agreement shall be bound to any of its provisions
solely by the presence of such provision in any draft herein unless and until
this Agreement is signed by such party. No draft of this Agreement prior to
that which is signed between the parties shall be used by any party, or be
admissible in any proceeding, to interpret the intent of the parties.
Proposed Labor Agreement § 14. Barstow’s theory that the Proposed Labor Agreement
was orally executed is therefore plainly inconsistent with the agreement’s terms.
Moreover, Barstow has not put forward any other explanation regarding how the parties
could have agreed to resolve their disputes through binding arbitration. Accordingly, the
Court cannot find that the NLRB will rule in Barstow’s favor due to a binding arbitration
clause, because the parties never agreed to any such clause.
At oral argument, counsel for Barstow claimed that Barstow and CNA had
submitted other disputes to an arbitrator, and that the only explanation for this conduct is
that the parties had reached a general agreement to arbitrate all disputes. This argument
has two fatal flaws. First, Barstow fails to provide any evidence regarding the
circumstances under which Barstow and CNA submitted disputes to an arbitrator.
Consequently, Barstow’s showing is plainly insufficient, because the Court is unable to
infer that the parties agreed to submit this dispute to an arbitrator from the mere fact that
the parties submitted some other disputes to an arbitrator. Second, because Barstow did
not submit this evidence to the NLRB in the underlying administrative proceeding,
Barstow’s evidence is not relevant. As stated above, the Court’s inquiry into the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Date
July 29, 2013
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
likelihood of success on the merits focuses on the likelihood that the NLRB will issue an
order favorable to CNA. Frankl, 650 F.3d at 1355. Therefore, evidence not submitted to
the NLRB is not relevant to the Court’s inquiry.1
Barstow’s second argument contends that CNA is unlikely to succeed because the
NLRB lacked a quorum at the time the Regional Director certified CNA as the collective
bargaining representative of Barstow’s RNs. The NLRB purportedly lacked a quorum
because the District of Columbia Circuit, in Noel Canning v. NLRB, 705 F.3d 490 (D.C.
Cir. 2013), invalidated the January 2012 recess appointments of three members of the
NLRB, leaving the NLRB with only two out of five valid members at the time CNA was
certified. Barstow concludes that CNA was never certified to act on behalf of Barstow’s
RNs, and therefore that it cannot succeed in the proceedings below.
This argument fails, because the Regional Director’s authority to exercise powers
lawfully delegated to her is not suspended at all times when the NLRB lacks a quorum.
Frankl, 650 F.3d at 1354; New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, 2642 n.4
(2010). Accordingly, even if the NLRB did lack a quorum at the time CNA was certified,
this would not affect the Regional Director’s exercise of delegated authority to certify
CNA as the representative of Barstow’s RNs. Magnesium Casting Co. v. NLRB, 401
U.S. 137, 142 (1971) (the NLRB may lawfully delegate authority to certify collective
bargaining representatives). Consequently, Barstow has not set out grounds undermining
the Regional Director’s certification of CNA.2
1
The Court notes Barstow’s argument, based on out of circuit authority, that the
Court has discretion to consider evidence not submitted to the NLRB to determine
likelihood of success on the merits. See Muffey ex rel. NLRB v. Spartan Mining Co.,
570 F.3d 534 (4th Cir. 2009); NLRB v. Hartman and Tyner, Inc., 714 F.3d 1244 (11th
Cir. 2013); Gottfried v. Frankel, 818 F.2d 485 (6th Cir. 1987). Even if the Court had
discretion to consider such evidence—which it appears to lack because evidence not
submitted to the NLRB is not relevant to the Court’s determination—the Court would
decline to exercise it here.
2
Barstow also argues that the Regional Director lacks authority to petition this
Court for injunctive relief under Section 10(j) because the NLRB lacks a quorum. This
argument has been squarely rejected by the Ninth Circuit, for the reasons explained
above. Frankl, 650 F.3d at 1354.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Date
July 29, 2013
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
Barstow’s final argument asserts that CNA has recently become affiliated with the
National Union of Healthcare Workers, and that as a consequence of this affiliation, there
has been a discontinuity of representation that relieves Barstow of its duty to bargain with
CNA in good faith. The doctrine of discontinuity of representation underlying this
argument pertains to cases where, often due to a merger, there have been such drastic
organizational changes in a labor union that the entity emerging after the changes lacks
“substantial continuity” with the former entity. See, e.g., Raymond F. Kravis Center for
the Performing Arts, Inc. v. NLRB, 550 F.3d 1183, 1190. Where such a discontinuity in
the union’s identity comes about, the employer no longer has a duty to bargain with the
union. CPS Chemical Co., 324 NLRB 1018, 1020 (1997). When determining whether a
discontinuity in representation exists, the totality of the circumstances are relevant,
including the following factors:
[C]ontinued leadership responsibilities by the existing union officials; the
perpetuation of 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, books, and assets.
Western Commercial Transport, 288 NLRB 214, 217 (1988).
Here, Barstow contends that a discontinuity exists because “the extent to which the
CNA has taken responsibility for all of [the National Union of Healthcare Workers’]
debts could seriously interfere with the CNA’s obligations regarding service and benefits
to its registered nurse units.” Def. Opp. at 21. Barstow provides no explanation why new
financial obligations would cause a discontinuity of representation, nor does it explain
why these financial obligations would change CNA leadership or its practices.
Consequently, the Court rejects the argument that a discontinuity of representation
justifies Barstow’s failure to bargain with CNA.
Accordingly, the Court finds that CNA is likely to succeed in the underlying
administrative proceedings, and therefore concludes that the first criterion for issuing an
injunction is satisfied.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
B.
Date
July 29, 2013
Irreparable Harm
The Regional Director contends that interim injunctive relief is necessary to
prevent irreparable harm in the form of decreased support for the CNA, disruption of the
collective bargaining process, and interference with the NLRB’s ability to grant an
appropriate remedy. The Court agrees. The Ninth Circuit has explained that failure to
bargain in good faith likely causes sufficient irreparable harm to justify the issuance of an
injunction under Section 10(j). Small v. Avanti Health Systems, LLC, 661 F.3d 1180,
1191 – 92 (9th Cir. 2011) (“Given the central importance of collective bargaining to the
cause of industrial peace, when the Director establishes a likelihood of success on a
failure to bargain in good faith claim, that failure to bargain will likely cause a myriad of
irreparable harms.”); Frankl, 650 F.3d at 1362 (“[F]ailure to bargain in good faith . . . has
long been understood as likely causing an irreparable injury to union representation.”).
Failure to bargain in good faith threatens industrial peace, deprives employees of a wide
range of economic and non-economics benefits brought about by labor unions, and also
weakens support for a union in a way that cannot be remedied by subsequent relief.
Small, 661 F.3d at 1192. The Court therefore finds that the Regional Director has shown
a likelihood of irreparable injury.
C.
Balance of the Equities and Public Interest
As stated above, if a likelihood of irreparable harm and success on the merits is
established, “the [Regional Director] will have established that preliminary relief is in the
public interest,” and there is considerable support for a finding that the equities weigh in
favor of an injunction. Frankl, 650 F.3d at 1365. The countervailing interest articulated
by Barstow justifying denial of injunctive relief is that granting the injunction will place
its license and its employees’ professional licenses at risk. This contention is speculative,
as Barstow has not submitted evidence tending to show that this harm would occur if the
Court grants interim injunctive relief. Accordingly, the Court finds that the latter two
factors also weigh in favor of granting injunctive relief.
///
///
///
///
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
ED CV 13-933 CAS (DTBx)
Title
MORI PAM RUBIN V. HOSPITAL OF BARSTOW, INC., D/B/A
BARSTOW COMMUNITY HOSPITAL
V.
Date
July 29, 2013
CONCLUSION
In accordance with the foregoing, the Court GRANTS the Regional Director’s
petition for interim injunctive relief under Section 10(j).
IT IS SO ORDERED.
00
Initials of Preparer
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:
12
CMJ
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