National Nurses Organizing Committee-Texas/National Nurses United (Bay Area Healthcare Group, Ltd. d

National Labor Relations Board - Administrative Judge Opinions

Jun 24, 2020

16-CB-225123 (N.L.R.B. Jun. 24, 2020)

JD–29–20
Corpus Christi, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NATIONAL NURSES ORGANIZING COMMITTEE-
TEXAS/NATIONAL NURSES UNITED (BAY AREA
HEALTHCARE GROUP, LTD. d/b/a CORPUS
CHRISTI MEDICAL CENTER, an indirect
subsidiary of HCA Holdings, Inc.)
Respondent
and Case 16-CB-225123
ESTHER MARISSA ZAMORA, an Individual
Charging Party
Roberto Perez, Esq., for the General Counsel.
Micah Berul, Esq., of Oakland California, for the Respondent.
Glenn M. Taubman, Esq. and Aaron B. Solem, Esq., of Springfield, Virginia, for the Charging
Party.
DECISION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge: The credited evidence fails to establish
that any term or condition of employment of bargaining unit employees was determined,
controlled, or affected by any agreement entered into by the Respondent other than the collective-
bargaining agreement between the Respondent and the Employer, together with the “side letters”
and memorandum of understanding it references. The record further fails to establish that any
other agreement or document related to, affected, or was affected by the Respondent’s exercise of
its authority and/or discharge of its duties as the employees’ exclusive bargaining representative.
The Respondent’s refusal to provide to a bargaining unit employee a copy of another document,
not shown to relate to terms and conditions of employment or its responsibilities as the exclusive
bargaining representative, did not violate Section 8(b)(1)(A) of the Act.
Procedural History
This case began on August 6, 2018, when the Charging Party, Esther Marissa Zamora,
filed an unfair labor practice charge against the Respondent, the National Nurses Organizing
JD–29–20
2
Committee-Texas/National Nurses United. The Board’s Regional Office in Fort Worth, Texas,
docketed this charge as Case 16–CB–225123.
Following an investigation, the Regional Director dismissed the charge by letter dated
December 28, 2018. The Charging Party appealed the dismissal. On September 13, 2019, the 5
Board’s Office of Appeals sustained parts of the appeal and remanded to the Regional Director for
further action.
On October 31, 2019, the Regional Director, acting pursuant to authority delegated by the
Board’s General Counsel, issued a complaint and notice of hearing. The Respondent filed a timely 10
answer dated December 5, 2019.
The Respondent’s answer included certain affirmative defenses. The third affirmative
defense began as follows: “The Complaint was issued in furtherance of an unlawful scheme
between the NRTW [National Right to Work Committee] and [the] NLRB General Counsel. . .” 15
The Respondent further asserted that the General Counsel’s action in issuing the complaint was
“arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.” The
Respondent contended that any judgment or order arising out of this complaint would violate the
Federal Administrative Procedures Act. The fourth affirmative defense in the Respondent’s
answer again referred to the General Counsel having an “unlawful scheme” and asserted that it 20
violated the First Amendment rights of employees.
The General Counsel moved to strike these portions of the Respondent’s answer. On
January 10, 2020, the deputy chief administrative law judge issued an order granting the General
Counsel’s motion. It struck the Respondent’s third and fourth affirmative defenses “as well as any 25
other references to an alleged unlawful scheme.” The order also stated as follows:
Furthermore, Respondent Union has not, as required by Section 102.20 of the
Board’s Rules of Procedure, admitted or denied the allegation in paragraph 8 that
it refused to provide to the Charging Party, as requested on July 10, 2018, a copy 30
of the neutrality agreement between Respondent and the Employer. Unless the
answer is timely amended, this allegation is deemed admitted.
On January 29, 2020, the Respondent filed an amended answer. The Respondent also has
petitioned for reconsideration of the deputy chief judge’s ruling but in the absence of any ruling 35
granting that petition, the January 10, 2020 order remains in effect.
The Charging Party also filed a motion to strike portions of the Respondent’s answer and
affirmative defenses and the Respondent filed an opposition to that motion. For reasons discussed
below, I have concluded that the complaint against the Respondent should be dismissed, and 40
reached that conclusion without considering the Respondent’s defenses and arguments which are
the subject of the Charging Party’s motion. Because granting or denying the Charging Party’s
motion would not affect the outcome of the case, it is not necessary to rule on it.
On February 4, 2020, a hearing opened before me in Corpus Christi, Texas. On that day 45
and the next, the parties presented evidence. Then, I adjourned the hearing until March 18, 2020,
JD–29–20
3
when it resumed by telephone conference call so that counsel could present oral argument in lieu
of briefs. After the oral arguments, I closed the hearing.
Amendment to Complaint Paragraph 6
5
At hearing, the General Counsel orally amended complaint paragraph 6, which describes
the bargaining unit of nurses which the Respondent represents. Bargaining unit employees work
at a number of locations where the Employer provides services to the public, but the original
complaint inadvertently left out one of these locations, 6629 Woolridge Road, Corpus Christi,
Texas. As amended at hearing complaint paragraph 6 now reads as follows:10
The following employees of the Employer, the unit, constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
INCLUDED: All fulltime, regular part-time, and per diem 15
registered nurses employed by the hospital at its facilities located
at 3315 South Alameda Street; 7101 South Padre Island Drive;
7002 Williams Drive; 13725 Northwest Boulevard, Corpus Christi,
Texas; 1702 Highway 181 North, Suite A-11, Portland, Texas,
78374; and 6629 Woolridge Road, Corpus Christi, Texas.20
EXCLUDED: All other employees, confidential employees,
physicians, nurse and/or clinical educators or coordinators, clinical
nurse specialists, clinical coordinators, case managers/utilization
review and/or discharge planners, nurse practitioners, accounting 25
or auditing RNs, infection control/employee health nurses, risk
management/performance improvement and/or quality assurance
or quality management nurses, employees of outside registries and
other agencies supplying labor to the Employer, already
represented employees, permanent charge nurses, managerial 30
employees, guards and supervisors as defined by the Act.
Based on the certifications of representative which are included in the joint exhibits, I
conclude that this unit is appropriate and find that the Respondent is the exclusive bargaining
representative of the employees in this unit.35
Amendment to Complaint Paragraph 8
Complaint paragraph 8 describes conduct which complaint paragraph 9 alleges to violate
Section 8(b)(1)(A) of the Act. In the original complaint, paragraph 8 alleged that “[W]ithin the 40
past six months, Respondent has refused to provide the Charging Party a copy of its neutrality
agreement with the Employer, as requested on or about July 10, 2018.”
After the hearing opened, and after the presentation of evidence, the General Counsel
moved to amend paragraph 8 and I granted the motion. As amended, the paragraph now reads as 45
follows:
JD–29–20
4
(a) Within the past six months, Respondent has refused to provide
the Charging Party a copy of its neutrality agreement with the
Employer, as requested on or about July 11, 2018.
5
(b) On or about July 25, 2018, Respondent, by its agent Bradley
Van Waus, responded to the Charging Party’s July 22, 3028 request
in a manner that was arbitrary and/or in bad faith.
(c) Respondent owed the Charging Party a duty to represent her in 10
good faith and by its actions described in paragraphs 8(a) and 8(b),
it violated that duty.
By this amendment, the General Counsel has recast paragraph 8 of the original complaint
as paragraph 8(a) of the amended complaint. The language of the original paragraph 8 is identical 15
to the language of paragraph 8(a) in the amended complaint except that the original paragraph 8
alleged that the Charging Party requested the neutrality agreement “on or about July 10, 2018”
whereas paragraph 8(a) of the amended complaint alleges that the Charging Party made this
request a day later, “on or about July 11, 2018.” The change corrects an error. The Charging Party
made her request in a letter dated July 11, 2018.20
Respondent’s Answer to Complaint Paragraph 8
After receiving the Respondent’s original answer, the General Counsel moved to strike
certain parts of it because those parts stated or implied that the General Counsel had engaged in 25
misconduct. On January 10, 2020, the Deputy Chief Administrative Law Judge issued an order
granting portions of the General Counsel’s motion. That order also noted that “Respondent Union
has not, as required by Section 102.20 of the Board’s Rules of Procedure, admitted or denied the
allegation in paragraph 8 that it refused to provide to the Charging Party, as requested on July 10,
2018, a copy of the neutrality agreement between Respondent and the Employer. Unless the 30
answer is timely amended, this allegation is deemed admitted.”
As discussed more fully later in this decision, the record fails to establish that Respondent
had any kind of neutrality agreement with the Employer, and I conclude that it did not. Rather, I
find that the Respondent, or a union affiliated with the Respondent, had entered into a “neutrality 35
agreement” with HCA Holdings, Inc., of which the Employer was an “indirect subsidiary.” It is
possible that this agreement did govern the Employer’s conduct during the Respondent’s earlier
organizing campaign which led to its certification, in 2010, as the exclusive bargaining
representative. However, there is no evidence that it governed, affected or even mentioned either
who could post notices on the bulletin board or any other term and condition of employment.40
In this situation, the Respondent’s answer accurately could have stated that it had not
entered into any “neutrality agreement” with the Employer, that the only “neutrality agreement”
was with the holding company, and that it did not pertain to or affect use of the bulletin boards or
any other term or condition of employment. Instead, the Respondent answered more cryptically. 45
Its answer only denied that it had “failed or refused to provide Charging Party with a copy of a
JD–29–20
5
neutrality agreement with the Employer that controls how the Employer can deal with her or has
any effect on her working life with the Employer as requested in Charging Party’s July 11, 2018
letter to Respondent.” (Italics added.)
After the January 10, 2020 order which granted portions of the General Counsel’s motion 5
to strike, the Respondent filed an amended answer which deleted the portions of its original answer
which the Deputy Chief Judge had ordered stricken. However, this amended answer did not
resolve the ambiguity inherent in its original answer to complaint paragraph 8. The amended
answer again denied that the Respondent had “failed or refused to provide Charging Party with a
copy of a neutrality agreement with the Employer that controls how the Employer can deal with 10
her or has any effect on her working life with the Employer as requested in Charging Party’s July
11, 2018 letter to Respondent.”
Is the Respondent’s answer to paragraph 8(a) sufficient to satisfy the requirement, in
Section 102.20 of the Board’s Rules and Regulations, that a respondent shall specifically admit, 15
deny, or explain each of the facts alleged in the complaint? If it is not, then the allegation may be
deemed admitted.1
Section 102.20 applies to “any allegation in the complaint.” However, is the existence of
a “neutrality agreement” actually alleged in the complaint? As discussed further below under the 20
heading “The Neutrality Agreement,” neither the complaint nor the amended complaint separately
and specifically alleges that a neutrality agreement exists. Rather, both paragraph 8 of the original
complaint and paragraph 8(a) of the amended complaint simply assume the existence of such a
document by alleging that the Respondent has failed to provide a copy of “its neutrality agreement
…”25
If the complaint had alleged that a neutrality agreement existed instead of assuming that
fact, the Respondent clearly would have been required to admit or deny such a document’s
existence. However, I have some concerns that the wording of the present complaint did not place
the Respondent on notice that it needed to deny the existence of any neutrality agreement. 30
Moreover, although the Respondent’s answer to amended complaint paragraph 8(a) is
more cryptic than it needed to be, other parts of the Respondent’s answer explained its position.
The Respondent included in its answer certain affirmative defenses, one of them being that it, as
the exclusive bargaining representative, only had a duty to furnish to the Charging Party any 35
agreement which affected her terms and conditions of employment, and that no “neutrality
agreement” had such an effect. Section 102.20 requires a respondent to admit, deny or explain,
1 Sec. 102.20 of the Board’’s Rules and Regulations, as amended, requires a respondent to
“specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is
without knowledge, in which case the respondent shall so state. . .” (Italics added.) Sec. 102.20 further
provides, in pertinent part, that “any allegation in the complaint not specifically denied or explained in
an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary
is shown.”
JD–29–20
6
and I conclude that the Respondent’s answer included sufficient explanation to satisfy the rule.
Further, I conclude that the Respondent effectively has denied the allegations raised in paragraph
8 of the complaint, as amended.
Admitted Allegations5
The Respondent has admitted the allegations raised in complaint paragraphs 1, 2(b), 2(c),
3, 4, and 7, and also has admitted the allegations set forth in portions of complaint paragraphs 2(a),
5(a), and 6. Based on the Respondent’s answer and the joint exhibits, I find that the General
Counsel has proven these allegations.10
More specifically, I find that the charge was filed and served as alleged in complaint
paragraph 1, that the Respondent is a labor organization, as alleged in complaint paragraph 4, and
that at all times material to this case Labor Representative Bradley Van Waus has been an agent
of the Respondent within the meaning of Section 2(13) of the Act, as alleged in complaint 15
paragraph 5.
Further, I find that the Respondent is the exclusive bargaining representative, within the
meaning of Section 9(a) of the Act, of employees in a bargaining unit which is appropriate within
the meaning of Section 9(b) of the Act, and that these employees work for Bay Area Healthcare 20
Group, Ltd. d/b/a Corpus Christi Medical Center (herein called the “Employer”), at its Corpus
Christi, Texas, facility. Based on certifications of representative which the parties introduced into
evidence as joint exhibits, and which are dated June 7, 2010, and September 14, 2016, I conclude
that the Respondent has been the exclusive bargaining representative at all times material to this
case. The Employer and the Respondent have entered into successive collective-bargaining 25
agreements, two of which, covering the relevant time period, are part of the present record.
Additionally, based on the Respondent’s admissions, I find that the Employer satisfies the
Board’s standards for the exercise of its jurisdiction, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and that it is a health care institution 30
within the meaning of Section 2(14) of the Act.
The Respondent has denied the allegation, in complaint paragraph 2, that the Employer is
an “indirect subsidiary of HCA Holdings, Inc.” However, for purposes of determining whether
the Board can and should assert jurisdiction over the Respondent, the Employer’s possible status 35
as a subsidiary is irrelevant. Because the Respondent is the exclusive representative of an
appropriate bargaining unit of employees who work for an employer clearly within the scope of
the Act and clearly subject to the Board’s jurisdiction, I conclude that the Board properly exercises
its jurisdiction in this case.
40
Respondent’s Motion to Strike
The Respondent has filed a “Motion to Strike, Or In The Alternative, Dismiss Portion of
Paragraph 5 of the Amended Complaint.” Specifically, the Respondent seeks to strike from
paragraph 5 of the amended complaint the allegation that “Maria (last name unknown)” held the 45
JD–29–20
7
position of “Representative” and was an agent of the Respondent within the meaning of Section
2(13) of the Act.
In its motion, the Respondent contends that this allegation is irrelevant and further asserts
that a previous settlement acts as a bar preventing litigation of whether Maria (last name unknown) 5
is the Union’s agent. Based on the Respondent’s settlement bar argument, I infer that someone
named Maria may have acted, or may have been alleged to have acted, on behalf of the Respondent
in a previous case which the Respondent settled. However, it is not necessary to consider this
matter because the record does not establish that anyone named Maria took any action relevant to
the unfair labor practice alleged in the present complaint. 10
Although the Respondent contends that the allegation concerning Maria’s agency status
should be stricken from the complaint, or in the alternative dismissed, it suffices to conclude that
the General Counsel has not proven this allegation, and I so find.
15
The Facts
Charging Party Zamora, a registered nurse, works in the bargaining unit represented by the
Respondent but is not a member of that union, which she opposes. In 2018, she tried to persuade
other employees to support her effort to decertify it.20
The Employer allows employees to use a conference room to conduct meetings, sometimes
called “in-services,” which other workers can attend. Zamora requested and received permission
to hold meetings to discuss the Union. To publicize such meetings, she prepared an announcement
titled “Making A Critical Decision, Evaluating Pros and Cons, What Has Your Union Done For 25
You?” It concluded with information regarding when and where the meetings would be held.
Zamora wanted to post copies of this notice on bulletin boards where employees could see
them. The Employer maintains two types bulletin boards. Certain of the boards are open and
available to employees who wish to post notices. Other bulletin boards are behind glass and must 30
be unlocked to gain access. The Employer uses such locked (or “protected”) bulletin boards for
its own “official” notices. Under its collective-bargaining agreement with the Respondent, it also
provides bulletin boards, both open and “protected,” for the Respondent to use. Specifically,
article 4, Section 3 of that contract states, in part:
35
For the posting of union notices communicating to bargaining unit employees, the
Hospital will make available to the union a dedicated bulletin board in each break
room in each Nursing Department and one (1) locked bulletin board in the
following location at each campus: at Bay Area/Heart Hospital on the first floor in
the hallway between Radiology and the Cafeteria; at Doctors Regional on the first 40
floor across from the Pharmacy entrance; at Northwest Regional on the first floor
in the hallway leading to the cafeteria; and at Northshore Emergency in the hallway
outside the employee breakroom.
JD–29–20
8
Zamora could not unlock the protected bulletin boards. Instead, she affixed her flyer to
the outside of the glass, at a spot where it would not cover up anything posted on the inside. She
also posted copies of the flyers on break room walls. However, someone later removed the flyers.
On June 20, 2018, Zamora sent an email to the Employer’s vice president of human 5
resources, Vince Goodwine. The record indicates she also sent a copy of this email to Michael
Lamond, whom Zamora identified as the Employer’s liaison with the Union. The email stated:
I would like to file a formal complaint against the NNOC union organizers for
removing my in-service flyers from the nurse’s break rooms and other bulletin 10
boards through Dr’s Regional Medical Center. There are a few of us who are
opposed to having this particular union represent us and would like to educate our
coworkers on another perspective or viewpoint. These are educational in-services
with the intent to open up a dialogue regarding the pros and cons of unionization.
We cannot educate our peers if they are unaware of our in-services.15
Today at approximately 1230pm, an NNOC union organizer walked out of my
break room on Rehab. I went directly into my break room and noticed my flyer
was gone. I immediately walked back out and down the hall and encountered this
individual and asked for her name. She stated her name was Maria and informed 20
me she was an organizer for the union. I asked her if she had removed my flier
from our break room and she stated she had. I informed her that I would expect
mutual respect from the union as I do not go to their boards and remove their
bulletins/flyers, etc. She responded that I’m not allowed to as that is their
designated space. I questioned what gave her the right to remove my flyer as it 25
was not even on the union board as she claims it was. I corrected her and stated
the corked area was their personal board space and my flier was on the wall. I
demanded she return my flier back to me of which she did. I also informed her
that Lynn James and I met with three of the Union nurse reps and discussed our
flyers being removed. All three agreed it was not right and would discuss with 30
their fellow members. Maria stated that she can’t tell the nurses what to do and
she has no control, insinuating to me that the fliers are going to be continued to be
taken down.
Mike, please follow up with the appropriate individuals to be respectful and leave 35
our educational in-service flyers alone. I promise you, they will not occupy any
space or area on their bulletin boards but rather on the walls.
Thank you for your immediate attention.
40
On the same day, Goodwine sent Zamora the following reply:
Thanks for your email. All employees have the same privilege in use of our
employee information bulletin boards.
45
I’ll defer to Michael to resolve with the NNOC.
JD–29–20
9
Thanks again for your email.
On June 28, 2018, Zamora telephone Michael Lamond. She testified that she told Lamond
about the flyers which she had posted being removed and asked for permission to use “the 5
protected bulletin board.” According to Zamora, Lamond said that permission had been denied
“because of my opposition. It pertained to being antiunion.”
The Respondent raised a hearsay objection to Zamora’s testimony concerning what
Lamond told her. Lamond did not testify and the record suggests that he may have died. The 10
Employer is not a party to this proceeding and even if it were, the record does not establish that
Lamond was the Employer’s agent. Therefore, I did not receive Zamora’s testimony concerning
Lamond’s words for the truth of the matter asserted, and make no findings concerning what
Lamond actually said to Zamora during this telephone conversation.
15
Moreover, Zamora’s testimony was so vague it doesn’t credibly establish what she said
during this conversation. For example, she said that they discussed a “neutrality agreement” but
her testimony does not reveal how that topic arose. Zamora did not indicate whether she raised
the subject or he did. She testified, in part:
20
I talked to him at great length about the denial and it being unfair and biased on my
employer’s part. I felt like I was being treated unfairly. We discussed the Neutrality
Agreement. I talked to him about that I was fully aware or felt very strongly that
there was a Neutrality Agreement based on my --
25
Thus, Zamora did not say that Lamond brought up the subject of a neutrality agreement.
To the contrary, her testimony provides some reason to doubt that Lamond mentioned it first. If
Lamond had said “you can’t post on the protected bulletin boards because the company has a
neutrality agreement,” Zamora would have had definite knowledge that such an agreement really
existed and, presumably, would have testified to that effect.30
However, Zamora did not testify that Lamond said anything which would indicate that a
neutrality agreement was affecting who had access to the bulletin boards. Instead, she testified she
told Lamond she was “fully aware or felt very strongly that there was a Neutrality Agreement. . .”
35
If Zamora said those words to Lamond, and if a neutrality agreement indeed limited who
could post notices on the bulletin boards, presumably Lamond, in response, would have
acknowledged that her hunch was correct. However, she did not quote Lamond as saying anything
which reasonably would be considered an affirmation that, as she suspected, there was a “neutrality
agreement” with provisions pertaining to use of the bulletin boards40
After Zamora gave the testimony quoted above, the Respondent raised an objection, which
I overruled. Zamora then testified:
Yes, we talked about a Neutrality Agreement that I firmly believed had to be in place based 45
on my past experience with a Neutrality Agreement. I felt that there was something in that
JD–29–20
10
that was preventing my hospital from granting my request for these privileges. He did
discuss that there was a Neutrality Agreement but that it had expired or a certain portion
of it had expired. There --
The vagueness of Zamora’s testimony diminishes its credibility. She did not quote 5
Lamond as saying that there was something in a neutrality agreement that prevented her from
posting on the locked bulletin boards but only testified that she felt there was. Moreover, she is
less than clear about whether Lamond told her that there had been a neutrality agreement which
had expired or whether he said that part of it had expired. Additionally, although she left open the
possibility that Lamond said that only part of the agreement remained in effect, Zamora provided 10
no specific information about the contents of any such part.
Clearly, Zamora considered access to the locked bulletin boards a matter important enough
to raise with the Employer’s vice president of human resources, who referred her to Lamond. She
testified that she talked with Lamond “at great length” and protested that she was being treated 15
unfairly. Certainly, she would have considered her conversation with Lamond important.
People tend to remember conversations concerning matters they consider important more
than they do discussions about subjects they believe trivial or inconsequential. Similarly, when a
person is seeking redress for perceived unfair treatment, emotion burns the matter into memory. 20
Without doubt, Zamora had strong feelings about the bulletin board issue. Otherwise, she would
not have contacted Goodwine and Lamond and spoken with the latter “at great length.” Yet
Zamora’s description of the conversation is nebulous and nonspecific. This inconsistency creates
the impression that either the witness is not telling the full story or that her memory is too sketchy
to be reliable.25
Even assuming that Zamora testified to the best of her recollection, her testimony does not
support a conclusion that Lamond brought up the existence of a neutrality agreement or cited it as
a reason for denying Zamora permission to post her flyer on the protected bulletin boards. As
noted above, Zamora did not say that she believed there was a neutrality agreement because 30
Lamond said that such an agreement existed. Rather, she testified that she “firmly believed” that
a neutrality agreement had to be in place “based on my past experience with a Neutrality
Agreement.”
Her “past experience with a Neutrality Agreement” had nothing to do with her present 35
Employer. She began working for that Employer in February 2012. Two years before that, in
January 2010, Zamora gave testimony about neutrality agreements before a Congressional
committee.
This history raises the possibility that Zamora, not Lamond, raised the matter of neutrality 40
agreements and that she did so because of a longstanding opposition to such agreements in general
and not because a neutrality agreement somehow had precluded her from posting a flyer on a
protected bulletin board. Significantly, Zamora did not testify that Lamond volunteered that a
neutrality agreement was the reason she could not post a notice on the protected bulletin boards.
If anything, her testimony points in another direction.45
JD–29–20
11
Therefore, I am somewhat concerned that Zamora is attempting to make this case a vehicle
for obtaining a precedent establishing that a union has a duty to furnish employees, on request, a
copy of an existing neutrality agreement when, in fact, the neutrality agreement had nothing at all
to do with the Employer’s decision denying Zamora access to the protected bulletin boards.
5
However, even if Zamora did not harbor such an ulterior motive—an “ax to grind”
concerning neutrality agreements in general—the vagueness of her testimony leads me to give it
little weight. Thus, even if Zamora is not seeking to set a precedent for the principle that a union
has a duty to disclose neutrality agreements to bargaining unit employees, her testimony—that she
believed that a neutrality agreement was preventing her from posting her notice, based on her past 10
experience with a neutrality agreement—leads me to conclude that she simply was speculating,
and that some previous experience unrelated to her present Employer inclined her speculation in
that direction.
Zamora’s testimony about what Lamond said constitutes hearsay which cannot be used to 15
establish the truth of the matters Lamond asserted. But even apart from being hearsay, Zamora’s
nebulous testimony would fall short of establishing either that the Employer had entered into a
neutrality agreement with the Respondent or that such agreement was the reason why the
Employer would not allow her to use the locked bulletin boards.
20
On July 3, 2018, Zamora sent an email to Lamond, with copies to several people, including
Vice President of Human Resources Goodwine. She included in that email a copy of Goodwine’s
reply to the email which she had sent Goodwine on June 20, 2018. (Goodwine’s brief reply, also
dated June 20, 2018, is quoted in full above.) Zamora’s July 3, 2018 email to Lamond stated:
25
On Thursday, June 28th, I spoke to you concerning my request for the protected
bulletin board and you said I was denied because it pertained to opposition to the
Union. I’ve included Mr. Goodwine’s response below which state[s] all
employees have the same privilege in use of informational bulletin boards. Are
you both telling me that ALL employees would be denied use of the protected 30
boards. Because as I see it, the employees that are pro-union are getting all the
privileges and those of us anti-union are being denied the same privileges. I am
simply asking for the same privileges my pro-union counterparts have established.
This is very unfair and biased on my employer[‘]s part and I am requesting you
and those you report to review our policies to establish fairness across the board to 35
All employees. I would greatly appreciate your immediate response as my team’s
window is extremely limited.
Zamora testified that “my team’s window” referred to the “window” of time for filing a
decertification petition.40
It is important to give one statement in this email particular scrutiny. Zamora wrote that
“as I see it, the employees that are prounion are getting all the privileges and those of us [who are]
anti-union are being denied the same privileges. I am simply asking for the same privileges my
pro-union counterparts have established.” Zamora’s testimony indicates that she made a similar 45
claim of disparate treatment during her June 28, 2018 telephone conversation with Lamond:
JD–29–20
12
Q. What do you recall about that discussion [with Lamond]?
A. We discussed -- I discussed again about my fliers being removed and I couldn’t
keep them up. Then I asked him about the protected bulletin board. I felt that the
pro-union nurses had this privilege and that I should have the same privilege. Just 5
because I’m on the opposing view should not deny me that privilege and that I
was having great difficulty getting permission to use it.
(Italics added.) Zamora thus appears to be claiming that the Employer was treating individual
nurses in two different ways, depending on their support for or opposition to the Union. 10
Specifically, her words imply that the Employer was allowing prounion nurses (acting on their
own as individuals and not on behalf of the Respondent) to post messages supporting the
Respondent behind the glass of locked bulletin boards, but denying her right to post antiunion
messages.
15
Zamora’s words therefore might create the impression that a secret agreement between the
Employer and the Respondent—an agreement apart from the collective-bargaining agreement—
resulted in certain employees receiving a workplace privilege denied to other employees. Taken
at face value, they suggest that some employees are coming to the Employer with prounion
messages and that the Employer allows these to be posted behind glass, while denying Zamora the 20
right to post anti-union messages.
Such a situation is highly implausible. The Respondent is well established as the
collective-bargaining representative, and is a party to a contract with the Employer. An individual
employee who favors such an incumbent union has little if any reason to post a notice expressing 25
support for it. Typically, such employees simply would maintain their memberships in the union
by paying dues. They also might attend meetings and participate in union matters and perhaps
express their support to coworkers. However, it would be unusual for an employee who wasn’t
acting on behalf of the union to seek to post an announcement supporting it on a locked bulletin
board.30
Because of my concerns about the impartiality of Zamora’s testimony, and also because it
would be out of the ordinary for an individual prounion employee to seek to post a notice
supporting an incumbent union on a locked bulletin board, I have looked to the record for
corroborating evidence. However, there is no evidence of any instance in which an individual 35
employee requested and was granted permission to post a prounion notice on a protected bulletin
board. Indeed, the record does not establish that any individual employee, other than Zamora,
sought permission to post any kind of message behind the glass.
In other words, the record does not establish that a privilege to post notices on a locked 40
bulletin board was a condition of employment enjoyed by any bargaining unit employee. I find
that it was not. Likewise, the credible evidence is insufficient to establish that the Employer had
a practice of allowing individual employees to post notices of any kind on protected bulletin
boards.
45
JD–29–20
13
The Respondent’s right to post notices on a locked bulletin board was not a condition of
employment of any bargaining unit employee, and it was not a right established by a secret
agreement. To the contrary, the collective-bargaining agreement conferred this right on the
Respondent so that it had a means of communicating with bargaining unit employees. The
Respondent did not keep this contract secret and, as noted below, provided Zamora a copy of it. 5
On July 8, 2018, Zamora sent another email to Lamond, with copies to Goodwine and
some other managers. That email stated:
I have been told on numerous occasions, from you, Mr. Goodwine, and several 10
others that I can not have a protected bulletin board because it would be
“facilitating” anti-union support. By not providing me with the same privileges
you are thereby facilitating pro-union support. I would very much like to see this
language in writing. I am formally requesting a copy of the Neutrality Agreement
between HCA and NNOC at your earliest convenience. I will gladly make a trip 15
to your office to retrieve or if you like you can email it to me. Mr. Goodwine
informed me that it is an HCA policy. I cannot find this so-called policy. Can you
direct me to that as well, please?
The Employer did not provide Zamora with a copy of any neutrality agreement. She then 20
requested the same document from the Respondent. Her July 11, 2018 letter to the Respondent
stated:
TO WHOM IT MAY CONCERN:
25
My name is Esther M. Zamora. I am an RN employed at Corpus Christi Medical
Center-Doctor’s Regional Hospital in Corpus Christi, Texas and am currently
represented by the National Nurse’s Organizing Committee. I am formally
requesting a copy of the HCA/NNOC Neutrality Agreement that brought your
union into our facility. I understand that the first stage has expired, but that my 30
employment remains governed by the second, post-organizing stage of this
agreement. I understand that aspects of this current agreement control how my
employer can deal with me, and vice versa. Since my working life at Corpus Christi
Medical Center-Doctors Regional Hospital is being affected by the neutrality
agreement’s current terms and conditions, I have a right to a copy of this 35
Agreement and you have a fiduciary duty to provide it to me. Please send the
agreement to me as soon as possible, and no later than 14 days from now. If you
refuse to send it, please explain your refusal. I thank you kindly for your expedited
services.
40
It may be noted that Zamora’s letter stated as fact some assertions which the present record
does not substantiate. For example, no credible evidence indicates that her employment “remains
governed by the second, post-organizing stage” of a neutrality agreement. Indeed, the record does
not establish that there is a neutrality agreement with two portions, or that one of those “stages”
remained in effect at the time of this letter. The credited evidence also does not prove that any 45
JD–29–20
14
agreement other than the collective-bargaining agreement affected the terms and conditions of
employment of bargaining unit employees.
Labor Representative Bradley Van Waus, whom the Respondent has admitted to be its
agent, answered Zamora’s letter: Van Waus’ reply, dated July 25, 2018, states as follows:5
Dear Ms. Zamora:
Thank you for your letter of July 11, 2018. There is no agreement between HCA
and NNOC that controls how your employer, Corpus Christi Medical 10
Center-Doctor’s Regional Hospital can deal with you as a [sic] employee in the
NNOC bargaining unit, other than the September 21, 2015-June 30, 2018
collective bargaining agreement between NNOC/Texas and Corpus Christi
Medical Center. Enclosed is a copy of that collective bargaining agreement.
15
If you have issues or concerns involving terms and conditions of your employment,
please do not hesitate to contact NNOC Labor Representative, Bradley Van Waus
who can be reached at 240-460-0352.
Sincerely, 20
Bradley Van Waus
The record does not indicate that Zamora filed or attempted to file a grievance concerning
the denial of her request to post a message on the locked bulletin boards or seeking access to those 25
boards. Additionally, the record does not establish that Van Waus, or any agent of the Respondent,
had any other communication with Zamora, apart from this July 25, 2018 letter, concerning her
request for a copy of the “neutrality agreement.” At hearing, the General Counsel amended
complaint paragraph 8 to add an allegation that this July 25, 2018 response to Zamora violated
Section 8(b)(1)(A) because it was arbitrary or in bad faith. 30
The Neutrality Agreement
There is a threshold question which must be addressed before moving on to the allegation
that the Respondent refused to provide the Charging Party with a neutrality agreement it had 35
entered into with the Employer: Does any such agreement exist?
Based on uncontroverted evidence, I find that the Respondent did not provide Zamora with
any document titled “neutrality agreement.” Indeed, the record clearly establishes that the
Respondent did not furnish Zamora with any document at all other than the collect-bargaining 40
agreement.
However, the General Counsel must prove more than that the Respondent did not furnish
the Charging Party with a requested document. As a threshold matter, the government first must
establish that such a document existed and then must prove that the Respondent, as exclusive 45
bargaining representative, had a duty to provide it to a requesting employee.
JD–29–20
15
These predicate conditions—that the document in question actually exists and that the
union has a duty to furnish it upon request by a bargaining unit member—cannot simply be
assumed to be true. If a bargaining unit employee asks the exclusive bargaining representative for
a copy of a document which does not exist, and that union tells the employee that no such document 5
exists, there can be no breach of the duty of fair representation. An exclusive bargaining
representative cannot, and does not have to, furnish a nonexistent document.
That principle seems so axiomatic it hardly needs to be mentioned. However, in the present
case, there are complicating factors which make it advisable to state the obvious: First, the 10
Charging Party’s July 11, 2018 request, when read carefully, turns out to be more ambiguous than
it initially appears. Second, the complaint does not separately allege that a neutrality agreement
exists, but just assumes that fact. Third, the Respondent answered the complaint in such a way
that it could not be certain whether or not a document entitled “neutrality agreement” actually
existed. These three factors come together to create a muddle, a nearly perfect cyclone of 15
ambiguity.
The Charging Party’s July 11, 2018 Request
The Charging Party’s July 11, 2018 letter to the Respondent states that she was “formally 20
requesting a copy of the HCA/NNOC Neutrality Agreement that brought your union into our
facility.” If considered just by itself, that language seems pretty clear. However, what the letter
says next muddies the water.
After requesting a copy of the neutrality agreement, the Charging Party’s letter goes on to 25
state that she understood that the neutrality agreement had two parts, and that the first part had
expired. Did that mean that the Charging Party was only asking for what she believed to be the
unexpired part? Her letter doesn’t say, at least not explicitly. However, what reason would she
have had even to mention her belief that the agreement had two parts unless she only sought the
portion which had not expired? 30
The next words in her letter support a conclusion that the Charging Party intended to
convey that she only sought the unexpired portion of the agreement. These words express her
belief that her “employment remains governed by the second, post-organizing stage of this
agreement. I understand that aspects of this current agreement control how my employer can deal 35
with me, and vice versa.” These words offer an explanation of why she was requesting the
document and also describe why she believed that the Respondent had a legal duty to give her a
copy of this agreement.
In these circumstances, I conclude that someone who read this letter reasonably would 40
understand it to be a request only for the supposedly unexpired portion of the neutrality agreement,
and would also reasonably understand that the Charging Party wanted this portion of the agreement
because she believed that it had an effect on her working conditions. Further, I conclude that she
intended the letter to communicate that message.
45
JD–29–20
16
The Complaint
As noted above, the complaint does not separately allege the existence of a neutrality
agreement. But there is an additional potential source of ambiguity. Paragraph 8(a) of the
amended complaint alleges that the Respondent “has refused to provide the Charging Party a copy 5
of its neutrality agreement with the Employer, as requested on or about July 11, 2018.” (Italics
added.)
For reasons discussed above, I conclude that someone reading the July 11, 2018 request
reasonably would understand that the Charging Party was asking only for the portion of the 10
neutrality agreement which had not expired. Therefore, it is not entirely clear from the complaint
whether the General Counsel contends that the Respondent’s failure to furnish the Charging Party
the entire neutrality agreement was a violation, or only the failure to provide the conjectured
unexpired portion.
15
The Respondent’s Answer
The Respondent’s answer stated that it “specifically denies that it failed or refused to
provide Charging Party with a copy of a neutrality agreement with the Employer that controls how
the Employer can deal with her or has any effect on her working life with the Employer as 20
requested in Charging Party’s July 11, 2018 letter to Respondent.” The Respondent’s answer also
included an affirmative defense which further explained its position. For reasons discussed above,
I have concluded that the Respondent’s answer satisfied the Section 102.20 requirement to
“specifically admit, deny, or explain each of the facts alleged in the complaint. . .” However, in
view of my conclusion that the Charging Party’s July 11, 2018 letter reasonably would be 25
understood to be a request only for the unexpired portion of the neutrality agreement, the part
which she felt might affect her working conditions, I further conclude that the Respondent has
effectively denied the existence of the document which the Charging Party requested.
Of course, that still leaves unanswered the question of whether there exists some document 30
titled “neutrality agreement” which does not include any provisions affecting terms and conditions
of employment. Although this issue need not be reached to decide whether the Respondent
committed an unfair labor practice, if left unresolved it would an untidy loose end.
Before and at first during the hearing, the Respondent repeatedly avoided revealing 35
whether or not it had entered into any other pact called a “neutrality agreement,” that is, into a
“neutrality agreement” which did not affect terms and conditions of employment. It is puzzling
why the Respondent worked so hard to leave uncertain whether or not any kind of neutrality
agreement existed. The existence of such a document would not have affected the Respondent’s
argument that it had no duty to provide an employee with such an agreement, or, indeed, with any 40
document which did not pertain to or affect the terms and conditions of employment of bargaining
unit employees.
JD–29–20
17
The Respondent advanced this argument in the second “affirmative defense”2 it included
with its answer to the complaint. It states, in part:
Under current Board law Respondent’s duty to provide agreements or documents
requested by Charging Party are limited to those which reflect or affect her terms 5
and conditions employment.
The “affirmative defense” then states, in effect, that a neutrality agreement “sets terms and
conditions for a democratic process to determine a petitioning union’s majority support in a
bargaining unit” but does not affect the terms and conditions of employment of bargaining unit 10
employees.3
It would not have detracted from this argument for the Respondent to have admitted that,
in connection with its efforts to organize the employees of the Employer and other subsidiaries of
HCA Holdings, Inc., it had entered into a “neutrality agreement” with the holding company. 15
Indeed, this question—whether any “neutrality agreement” existed—would not go away. It arose
during the hearing when the General Counsel sought to introduce a position statement submitted
to the Board’s Regional Office by the attorney for HCA Holdings, Inc., during the investigation of
a related matter, a charge which Zamora had filed against the holding company and the Employer
because she had been denied the use of the locked bulletin boards. (The position statement, dated 20
October 17, 2018, identified that case as Corpus Christi Medical Center and HCA Holdings, Inc.,
16–CA–225103. It is not before me.)
During this discussion, the existence or nonexistence of a neutrality agreement remained
unclear. Therefore, I asked the Respondent’s counsel about it:25
JUDGE LOCKE: Well, let me ask you this: Is there
any agreement between the
Employer and the Union, other than
the Collective Bargaining 30
Agreement?
MR. BERUL: There is none.
JUDGE LOCKE: There is none. 35
2 The term “affirmative defense” appears to be a misnomer because the Respondent does not bear
the burden of pleading or proving that the requested document did not relate to terms and conditions of
employment. Rather, the General Counsel bears the burden of establishing that the document sought
pertains in some way to the Respondent’’s duties as the exclusive bargaining representative.
3 The “affirmative defense” then concludes with a somewhat fuzzy argument which, I believe, can
be expanded and restated more plainly as follows: The Charging Party indicated that she believed part
of the neutrality agreement remained in affect, but if so, that portion did not pertain to the working
conditions of employees in her bargaining unit but instead set rules which the parties would follow when
the Respondent tried to organize employees at other facilities controlled by HCA Holdings, Inc. Such
provisions do not apply to the Charging Party or her bargaining unit and, therefore, the Act does not
require the Respondent to furnish her with a copy.
JD–29–20
18
MR. BERUL: The Employer being Corpus Christi Medical Center,
there is none.
JUDGE LOCKE: So, how about between the Union and 5
the HCA Holdings?
MR. BERUL: There are —I think there is probably multiple
agreements, but I don’t know the answer exactly.
But I will say definitively, there is not any 10
agreement between HCA Holdings and
Respondent Union, that has any impact on terms
and conditions of employment of the employees of
Corpus Christi Medical Center, and it is not our
burden to prove -- we are innocent until proven 15
guilty. They haven’t proved anything.
JUDGE LOCKE: Well, is there any agreement between the
Union and HCA Holdings that -- as to how
the Employer will act in the face of a union 20
organizing effort, or in the face of an
election [conducted] by the Labor Board?
MR. BERUL: You mean, like what —what position they would
take with regard to —25
JUDGE LOCKE: Yes.
MR. BERUL: There is not.
30
This statement by the Respondent’s counsel appears to conflict with the position letter
submitted by HCA Holdings, described above, which I received into evidence. That letter
identified the Employer, Corpus Christi Medical Center (CCMC), as an indirect subsidiary of HCA
Holdings, Inc., and stated, in part:
35
HCA Holdings, Inc., is a party to an agreement with California Nurses Association,
of which NNOC—Texas, NNU is an affiliate. That agreement requires the parties
and their affiliates to conduct their relationships in a manner consistent with mutual
respect and joint commitment to problem solving. The agreement does not govern
the terms and conditions of employment of bargaining unit employees at CCMC.40
The position statement further stated that the “agreement provides that neither CCMC nor HCA
Holdings shall encourage or support decertification, but does not otherwise limit how they can deal
with bargaining unit employees.”
45
JD–29–20
19
Thus, this position letter contradicted to some extent the representations of the
Respondent’s attorney during the hearing. However, neither HCA Holdings nor the Employer is
a party to this proceeding, and neither appeared at the hearing. Therefore, there was no opportunity
during the hearing to explore the differences between the HCA Holdings position letter and the
representations of the Respondent’s counsel.5
However, the week before the hearing opened, the attorney for HCA Holdings and the
Employer did participate in a prehearing conference call concerning petitions to revoke subpoenas,
including a petition to revoke a subpoena served by the Charging Party. This subpoena sought to
require HCA Holdings and the Employer to produce the neutrality agreement.10
The Charging Party’s subpoena and the petition to revoke presented an unusual issue. It
involves the seemingly paradoxical and uncommon situation in which it is appropriate for the
judge to revoke a subpoena seeking information which is relevant to the case. Ordinarily, of
course, the judge’s job is to revoke a subpoena seeking evidence which does not relate to “any 15
matter under investigation or a question in the proceedings. . .” See Section 102.31(b) of the
Board’s Rules and Regulations. However, on those rare occasions when a subpoena for relevant
information would deny a party due process, such a subpoena may be revoked notwithstanding the
relevance of the information sought. Such rare occasions involve cases in which the alleged
violation itself is a refusal to furnish the information and the remedy would be an order directing 20
that the information be provided.
When the Board finds that a respondent has violated the Act by refusing to provide
requested information, it remedies that unfair labor practice by ordering the respondent to do so.
However, the Board issues such an order only after the General Counsel has proven a violation. 25
To accomplish the same result by use of a subpoena, before evidence had been received and
considered, would short-circuit the adjudicative process and eliminate the requirement that a
violation be established before a remedy is ordered.
In Electrical Energy Services, Inc., 288 NLRB 925 (1988), the Board approved its 30
administrative law judge’s revocation of a subpoena which would have required the respondent to
produce the same document that it allegedly had withheld unlawfully. The judge’s decision stated:
In the instant case, the General Counsel is attempting to use the
subpoena duces tecum as a substitute for the Board order sought by 35
the complaint. Not only is this procedure improper, but it is an
abuse of the subpoena power because it would undercut the
statutory requirement for an unfair labor practice hearing where the
ultimate issue to be decided is whether the General Counsel is
entitled to the information in question.40
288 NLRB at 931.
This holding in the Electrical Energy Services case concerned a subpoena which the
General Counsel had directed towards the respondent. In contrast, the subpoena at issue here 45
comes at the behest of the Charging Party and is directed to the Employer and HCA Holdings,
JD–29–20
20
which are not parties to this proceeding. Thus, the subpoena would not require the Respondent to
take the same action it would be ordered to take if found, after hearing, to have violated the Act.
Indeed, it would not require the Respondent to take any action. So, it would not directly deny the
Respondent’s due process by requiring the Respondent to take the same action it would only have
to take if the government proved that withholding the information had violated the Act. But it 5
would, in a sense, commandeer the Board’s subpoena power to obtain a document which the
Charging Party might otherwise (if the government failed to prove a violation) have no right to
see.
Because of these differences, in both the recipient of the subpoena and the party serving it, 10
Electrical Energy Services is not squarely on point. Moreover, the present issue, unlike that in
Electrical Energy Services, involves the clash of two competing principles, both of which are
important.
On the one hand, although the subpoena would not require any disclosure by the 15
Respondent, the Charging Party nonetheless would receive the document which the Respondent,
and also presumably the Employer, wished to keep secret. Even though the Respondent was not
the subpoenaed party, it was a party to the agreement, and thus had some legitimate interest in
keeping the document secret.
20
Additionally, the legal principle that the Act imposes on an exclusive bargaining
representative a duty to provide requested information concerning the performance of its statutory
duties comes with the corollary that the Act does not require a union to furnish a requesting
employee with information not related to its statutory duties. The Board therefore lacks statutory
authority to require a union to provide such information. If the Board has no authority to order 25
such a remedy, may it achieve the same result by allowing a party to subpoena the same
information from another source?
On the other hand, granting the petition to revoke the subpoena would deny the Charging
Party evidence highly relevant to a central, indeed dispositive issue: Whether the neutrality 30
agreement actually affected or pertained to terms and conditions of employment or whether it
simply concerned how the Employer would act during an organizing campaign and election. The
neutrality agreement itself would be the most relevant evidence needed to resolve this issue and
might be the only evidence.
35
Although HCA Holdings and the Employer are not parties in this proceeding, I requested
their counsel to be present, along with counsel for the various parties, during a telephone
conference call the week before the hearing. During this prehearing conference call, after
discussion of the issue, I told counsel that I would not grant the petition to revoke the subpoena at
this point but rather would examine the neutrality agreement in camera before deciding how to 40
proceed.
Such in camera examination is disfavored and should be used only rarely. However, in
this instance, there appeared to be no ready alternative which would balance the competing
interests. An in camera examination would allow me to determine whether the neutrality 45
agreement included any provisions which affected the bargaining unit employees’ terms and
JD–29–20
21
conditions of employment. If so, I could order that other portions of the document be redacted
before it was provided to the Charging Party. Thus, only the provisions relevant to the present
case would be revealed. But if the neutrality agreement included no provisions affecting the terms
and conditions of employment of bargaining unit employees, then I would grant the petition to
revoke in its entirety.5
On February 3, 2020, the day before the hearing opened, the attorney representing HCA
Holdings and the Employer sent me an email, with copies to counsel in this proceeding. That
email stated:
10
I have discussed with my clients the in camera inspection of documents responsive
to Charging Party’s subpoenas duces tecum. Respectfully, they do not intend to
produce documents for in camera inspection. As the cases we cited in our Petitions
to Revoke establish, the Board has held that where the primary issue to be decided
in the unfair labor practice hearing is whether the Charging Party is entitled to the 15
requested information, the information cannot be obtained by a subpoena. That
being the case, regardless of the outcome of any in camera inspection, the requested
documents cannot be obtained by Charging Party’s subpoenas duces tecum.
Accordingly, my clients do not intend to produce documents for in camera
inspection.20
HCA Holdings and the Employer did not produce the subpoenaed neutrality agreement
and their attorney did not attend the hearing.
When a subpoenaed individual or company does not comply with a subpoena, the Board 25
may petition a federal district court to issue an order enforcing the subpoena. See, e.g., United
Refrigerator Services, 325 NLRB 258 (1998). However, the record does not indicate that the
Charging Party sought such enforcement and I conclude that it did not.
When a party to a Board proceeding fails to comply with a subpoena served on it by an 30
opposing party, the Board may impose a variety of sanctions. These sanctions include permitting
the party seeking production to use secondary evidence, precluding the noncomplying party from
rebutting that evidence or cross-examining witnesses about it, and drawing adverse inferences
against the noncomplying party. McAllister Towing & Transportation Co., Inc., 341 NLRB 394
(2004); International Metal Co., 286 NLRB 1106, 1112 fn. 11 (1986); Bannon Mills, 146 NLRB 35
611 (1964).
However, HCA Holdings and the Employer are not parties to this proceeding. Therefore,
even were it possible, imposing a sanction would not be appropriate. More specifically, it would
not be proper to draw an adverse inference, binding on the Respondent, when the Respondent was 40
not the party served with the subpoena and did not refuse to comply with it.
The most trustworthy evidence concerning a possible neutrality agreement is the October
17, 2018 position letter of HCA Holdings and the Employer, submitted during the investigation of
Case 16–CA–225103. That document is in evidence as General Counsel’s Exhibit 7. Relying on 45
it, I find that there is a neutrality agreement between HCA Holdings and the Respondent or an
JD–29–20
22
affiliate of the Respondent, and that this agreement does not affect the terms and conditions of
employment of bargaining unit employees.
Although the Charging Party testified that she believed the neutrality agreement did affect
such terms and conditions of employment, she has not seen the agreement. Moreover, for reasons 5
discussed above, I give little weight to her vague testimony concerning a telephone conversation
with Michael Lamond, who did not testify. Both the position statement and the words which
Zamora attributes to Lamond are hearsay, but I have considerably more confidence in the former
than the latter.
10
Moreover, a “neutrality agreement” typically governs an employer’s conduct during a
union organizing campaign rather than setting terms and conditions of employment. Here, where
the Employer and Respondent have entered into an extensive collective-bargaining agreement
addressing wages, hours and many other matters, and where that comprehensive contract makes
no mention of a “neutrality agreement,” it is difficult to believe that the parties intended it to 15
establish any conditions of employment.
At the end of the 94-page collective-bargaining agreement appear two “side letters” and
one “memorandum of understanding.” If the “neutrality agreement” had any effect on terms and
conditions of employment, presumably the contracting parties would have attached it to the 20
collective-bargaining agreement, as they did these other “side agreements.” They did not.
Also, there is no apparent reason for these parties to keep secret a document specifying
terms and conditions of employment. Either party might need to cite such a document during a
grievance proceeding or arbitration.25
Additionally, the Employer was not a party to the neutrality agreement. Only HCA
Holdings entered into it. But the collective-bargaining agreement is between the Employer,
Corpus Christi Medical Center, and the Respondent. HCA Holdings is not a party to that contract.
30
The credible and credited evidence falls well short of establishing that the neutrality
agreement affected any term or condition of employment of bargaining unit employees. Therefore,
I find that the neutrality agreement does not.
Further, I find that although the Employer obviously had exclusive access to those locked 35
bulletin boards which displayed its official notices, the collective-bargaining agreement
determined who would have access to the other locked bulletin boards. The complaint does not
allege that the Respondent violated the Act by any failure to provide the Charging Party with a
copy of this contract. Moreover, the evidence clearly establishes that the Respondent did furnished
the Charging Party with a copy. 40
The relevant portion of the collective-bargaining agreement, Article 4, Section 3 (which is
quoted verbatim above) provides that the Employer “will make available to the union a dedicated
bulletin board” at certain specified locations. To “dedicate” means to “set aside specifically for a
purpose.” The collective-bargaining agreement specifies that purpose, “the posting of union 45
JD–29–20
23
notices communicating to bargaining unit employees.” Needless to say, the Charging Party’s
flyers are not “union notices.”
The Respondent is the sole author of “union notices” and thus the sole authorizer deciding
what to post on the bulletin boards dedicated to its use. However, the complaint in this case does 5
not allege that the Respondent violated the Act by refusing to allow the Charging Party to post
anything on any of these bulletin boards. Likewise, the General Counsel has not argued that the
Respondent violated the Act by any failing to allow the Charging Party to post on these union
bulletin boards.
10
The credited evidence establishes only that officers or agents of the Respondent posted
notices on these union bulletin boards. I do not find that any employee, except for a union officer
or agent, has been allowed to post anything on the locked bulletin boards dedicated to the
Respondent’s use. Similarly, credited evidence fails to establish that anyone other than a manager
or agent of management has posted anything on a locked bulletin board dedicated to the 15
Employer’s use.
Analysis
The General Counsel alleges, in paragraph 8 of the complaint, that the Respondent “owed 20
the Charging Party a duty to represent her in good faith” and that the Respondent breached this
duty by (a) refusing “to provide the Charging Party a copy of its neutrality agreement with the
Employer, as requested on or about July 11, 2018,” and (b) responding “to the Charging Party’s
July 11, 2018 request in a manner that was arbitrary and/or in bad faith.”
25
“Breaching a duty” means failing to do something the duty requires. A duty also can be
breached by failing to perform the required act in a satisfactory manner. For example, an employer
has a duty to furnish the employee’s exclusive collective-bargaining representative with requested
information which is relevant to and necessary for that union to perform its representation function.
It breaches that duty either by failing to provide the information at all, or by delaying unreasonably 30
in doing so. West Penn Power Co., 339 NLRB 585 (2003). Of course, sometimes a duty requires
a person to refrain from performing some act. In those instances, a person breaches the duty by
doing what he was obliged not to do.
Proving that a duty has been breached begins with establishing that a duty existed. In the 35
present case, the General Counsel alleges, in paragraph 8(c) of the amended complaint, that the
“Respondent owed the Charging Party a duty to represent her in good faith.” The burden falls on
the General Counsel to establish that predicate fact.
Congress created the Board to administer the National Labor Relations Act, giving it 40
authority to determine when the Act has been violated and to issue orders to remedy such
violations. The Board’s authority to enforce duties is limited to those duties which the Act
imposes. So, I begin by considering what the Act requires the Respondent to do.
JD–29–20
24
After employees selected the Respondent to represent them, the Board certified it to be the
bargaining unit employees’ exclusive representative, as that term is used in Section 9(a) of the Act.
Section 9(a) states, in part:
Representatives designated or selected for the purposes of collective bargaining by 5
the majority of the employees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of employment, or
other conditions of employment. . .
10
29 U.S.C. § 159(a).
The Act requires the employer to bargain with the employees’ exclusive representative and
that union can invoke the Board’s processes to compel the employer to do so. With this power
comes responsibility. In Miranda Fuel Co., Inc., 140 NLRB 181 (1962), the Board stated:15
The privilege of acting as an exclusive representative derives from Section 9 of the
Act, and a union which would occupy this statutory status must assume “the
responsibility to act as a genuine representative of all the employees in the
bargaining unit.”20
140 NLRB at 184, citing Peerless Tool & Engineering Co., 111 NLRB 853 (1955). Thus, the duty
of fair representation enforced by the Board concerns how a union wields the power which comes
with its status as exclusive bargaining representative.
25
An exclusive bargaining representative answers to the employees it represents. When the
union’s exercise of its statutory authority affects a bargaining unit employee, it has a duty to
provide that employee, on request, with certain information about what it did. For example, if
such a union is representing an employee in a grievance proceeding, the union has the duty to
furnish the employee, on request, information about the grievance and its status. Local 1657, 30
United Food & Commercial Workers, AFL–CIO, CLC (Food World), 340 NLRB 329 (2003);
Auto Workers Local 909 (General Motors Corp.—Powertrain), 325 NLRB 859 (1998); American
Postal Workers Union, AFL–CIO, 328 NLRB 281 (1998).
The amount of information which it must provide depends on particular circumstances. 35
However, in general, the information must relate in some fashion to the duties which the union
assumed when it sought and accepted the status of exclusive bargaining representative. A union
can violate Section 8(b)(1)(A) of the Act in some other fashion, by doing something which
restrains or coerces employees in the exercise of their rights under the Act, but if the violation does
not concern how the union used or failed to use the power bestowed on it by Section 9 of the Act, 40
such a violation does not implicate the duty of fair representation which the Act imposes, and
which is cognizable by the Board.
In the present case, the General Counsel only has alleged that the Respondent breached its
duty of fair representation and does not allege that the Respondent violated Section 8(b)(1)(A) of 45
the Act in some other manner. The Respondent’s failure to furnish the Charging Party with a copy
JD–29–20
25
of the neutrality agreement can only be a breach of the duty of fair representation if the neutrality
agreement has something to do with the Respondent’s representation function, that is, with the
Respondent’s discharge of its responsibilities as exclusive bargaining representative. The General
Counsel bears the burden of proving such a connection.
5
An exclusive bargaining representative’s statutory duties include meeting with the
employer at reasonable times and “conferring in good faith with respect to wages, hours and other
terms and conditions of employment, or the negotiation of an agreement or any question arising
thereunder, and the execution of a written contract incorporating any agreement reached. . .” 29
U.S.C. § 158(d). Representing employees in grievance proceedings falls within the duty to meet, 10
confer, and negotiate about “any question arising” under the contract.
The credited evidence does not establish that the neutrality agreement controls or even
relates to any term or condition of employment. Both the Employer and the Respondent state that
it does not, and there is no credible evidence to the contrary. The Charging Party’s testimony, that 15
she “felt” that the neutrality agreement must have some effect on working conditions, amounts to
nothing more than speculation.
Although the Charging Party believed that the neutrality agreement affected who could
post notices on the locked bulletin boards, I find, to the contrary, that the collective-bargaining 20
agreement alone established the Employer’s bulletin board policy. Further, the record does not
establish that the neutrality agreement prescribed or affected any other terms and conditions of
employment of bargaining unit employees. Therefore, I conclude that the General Counsel has
not carried the burden of proving that the neutrality agreement has any relationship to the
Respondent’s exercise of the authority bestowed on it by Section 9 of the Act or to the performance 25
of its duties as the exclusive bargaining representative.
Because the neutrality agreement does not pertain to or affect the Respondent’s
representation of bargaining unit employees, I conclude that the Respondent’s failure to furnish a
copy of it to the Charging Party does not breach its duty of fair representation. 30
The complaint, as amended, also alleges that the Respondent breached its duty of fair
representation, in violation of Section 8(b)(1)(A) of the Act, by how its agent, Bradley Van Waus,
answered the Charging Party’s July 22, 2018 request for a copy of the neutrality agreement.
Specifically, complaint paragraph 8(b) asserts that Van Waus’s response was “in a manner that 35
was arbitrary and/or in bad faith.”
During oral argument, the General Counsel contended that the Respondent “provided the
Charging Party with a parsed response intended to conceal whether or not it maintains a Neutrality
Agreement with the Employer, or its corporate parent (HCA), that applies to bargaining unit 40
employees. . .” The General Counsel further asserted:
Respondent’s response to the Charging Party was nothing more than wordsmithing
or parsing of legal language in effort to conceal whether or not it maintains a
Neutrality Agreement with the Employer.45
JD–29–20
26
The General Counsel argued that the
Respondent ultimately has engaged in a classic “hide the ball” game here. It has
refused to admit or deny whether any such Neutrality Agreement exists, while at
the same time arguing that the Charging Party has never seen the Neutrality 5
Agreement, so the Charging Party cannot prove that the agreement exists, or prove
that it affects her terms and conditions of employment.
However, Van Waus’ July 25, 2018 reply to Zamora, which the General Counsel alleges
to be violative, states plainly that 10
There is no agreement between HCA and NNOC that controls how your employer,
Corpus Christi Medical Center-Doctor’s Regional Hospital can deal with you as a
[sic] employee in the NNOC bargaining unit, other than the September 21,
2015-June 30, 2018 collective bargaining agreement between NNOC/Texas and 15
Corpus Christi Medical Center.
Moreover, Van Waus enclosed with this letter a copy of the collective-bargaining agreement.
Thus, although Van Waus’ July 25, 2018 letter did not specifically deny the existence of a
neutrality agreement, it unequivocally communicated that the collective-bargaining agreement 20
alone set Zamora’s terms and conditions of employment.
My conclusion that Van Waus’ letter is unambiguous on this point does not suggest that it
could not have been clearer regarding the existence or nonexistence of a neutrality agreement.
However, Van Waus’ letter, which the General Counsel alleges to have been arbitrary and/or in 25
bad faith, does not mislead the Charging Party and it states clearly that the collective-bargaining
agreement was the sole agreement affecting how the Employer could deal with her as a bargaining
unit employee.
The duty of fair representation imposed by the Act concerns how an exclusive bargaining 30
representative uses the authority conferred by the Act, but the evidence does not establish that the
Respondent was exercising such statutory authority when it negotiated the neutrality agreement
with HCA Holdings. Since a union typically enters into a neutrality agreement while it is still
organizing employees, it cannot be assumed that the Respondent was the exclusive bargaining
representative when it negotiated that agreement.35
Moreover, not every agreement negotiated by an exclusive bargaining representative
pertains to or affects employees in the bargaining unit it represents. When a union enters into an
agreement not affecting the terms and conditions of employment of workers in the bargaining unit,
it cannot be presumed that the union was performing a function in its capacity as exclusive 40
bargaining representative.
The General Counsel bears the burden of proving the relationship between the information
sought and a union’s performance of its statutory duties. Here, the evidence does not establish
such a relationship.45
JD–29–20
27
Therefore, I cannot conclude that the Respondent’s reply to the Charging Party’s July 11,
2018 request was arbitrary and/or in bad faith. Likewise, I cannot conclude that the Respondent
breached its duty of fair representation in violation of Section 8(b)(1)(A) of the Act. Accordingly,
I recommend that the Board dismiss the complaint in its entirety.
5
Conclusions of Law
1. At all material times, the Respondent, National Nurses Organizing
Committee-Texas/National Nurses United (Respondent) has been a labor organization within the
meaning of Section 2(5) of the Act. Labor Representative Bradley Van Waus is an agent of the 10
Respondent within the meaning of Section 2(13) of the Act.
2. At all material times, the Respondent has been and is the exclusive bargaining
representative, within the meaning of Section 9(a) of the Act, of a bargaining unit consisting of
employees of the Employer, Bay Area Healthcare Group, Ltd. d/b/a Corpus Christi Medical 15
Center. This unit, which is described above under the heading “Amendment to Complaint
Paragraph 6,” is an appropriate unit for collective bargaining within the meaning of Section 9(b)
of the Act. The Charging Party, Esther Marissa Zamora, is an employee of the Employer and a
member of this bargaining unit.
20
3. The Employer, Bay Area Healthcare Group, Ltd. d/b/a Corpus Christi Medical Center,
is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act
and a health care institution within the meaning of Section 2(14)
of the Act.
25
4. The Respondent did not violate the Act in any manner alleged in the complaint.
On the findings of fact and conclusions of law herein, and on the entire record in this case,
I issue the following recommended4
30
ORDER
The complaint is dismissed.
35
Dated Washington, D.C. June 24, 2020
Keltner W. Locke
Administrative Law Judge40
4 If no exceptions are filed as provided by Section 102.46 of the Board’’s Rules and Regulations,
these findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules,
be adopted by the Board, and all objections to them shall be deemed waived for all purposes.