Pomona Valley Hospital Medical Center

National Labor Relations Board - Administrative Judge Opinions

Nov 19, 2008

21-CB-014428 (N.L.R.B. Nov. 19, 2008)

JD(SF)–48–08
Pomona, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SERVICE EMPLOYEES INTERNATIONAL UNION,
NURSES ALLIANCE, LOCAL 121RN (POMONA
VALLEY HOSPITAL MEDICAL CENTER)
and Case 21-CB-14428
CAROLE JEAN BADERTSCHER, An Individual
Lisa E. McNeill, Esq., for the General Counsel.
Glenn M. Taubman, Esq., (National Right to Work
Legal Defense Foundation, Inc.,) of Springfield, VA
for the Charging Party.
Matthew J. Gauger, Esq., (Weinberg, Roger &
Rosenfeld) of Los Angeles, CA, for the Union.
DECISION
Statement of the Case
William G. Kocol, Administrative Law Judge. This case was tried in Los Angeles,
California, on September 22, 2008. The charge was filed on October 30, 20071 by Carole Jean
Badertscher, an individual, (the “Charging Party”) and the complaint was issued on June 30,
2008. The complaint alleges that Service Employees International Union, Nurses Alliance,
Local 121 RN, (the “Union”) violated Section 8(b)(1)(A) by informing unit employees of the
existence of a law enacted by California forbidding “professional strikebreakers” when that law
interferes with the rights of employees and employers under the Act and therefore is preempted
by the Act. The complaint also alleges that the Union violated Section 8(b)(1)(A) by telling
employees that their continued employment under a union-security provision of an expired
contract was conditioned upon their continued payment of union dues.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Union, and the Charging Party,
I make the following.

1 All dates are in 2007 unless otherwise indicated.
JD(SF)–48–08
5
10
15
20
25
30
35
40
45
50
2
Findings of Fact
I. Jurisdiction
Pomona Valley Hospital Medical Center, (the “Hospital”), a corporation, provides patient
care services at its facility in Pomona, California, where it annually derives gross revenues in
excess of $1 million and annually purchases and receives goods valued in excess of $50,000
directly from points outside the State of California. The Union admits and I find that the Hospital
is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The Union represents a unit of about 1000 registered nurses at the Hospital. The Union
and the Hospital were parties to a collective-bargaining agreement effective, May 28, 2004
through May 27, 2007. The agreement contained union security and dues check-off provisions.
That contract was extended month-to-month until August 26 when the Union gave the Hospital
a 10-day written notice of its desire to terminate the contract extension. On August 27 the
Union gave the Hospital a 10-day strike notice and a one-day strike occurred on September 6.
The Union communicated with the nurses and provided them with information concerning its
view of the negotiations. Also participating in the discussion was a group of nurses who called
themselves “Nurses for a Union Free [Hospital] (the “Union Free Nurses.”) This group
distributed a leaflet on September 11 responding to the Union’s literature and arguing against
support for the Union. The Union Free Nurses pointed out how they will remember the fractured
friendships and aching hearts that were caused when “outside forces” collided with the
Hospital’s “family values.” The leaflet continued:
Ways to demonstrate your change of heart:
1. Sign the petition to de-certify [the Union] as the bargaining entity for the RNs at [the
Hospital].
2. Send a letter to the Union rescinding your union membership.
3. Notify [the Union] and [the Hospital] HR that as there is no longer a contract in
effect, you do not intend to pay union dues.
On September 12 the Hospital distributed a memorandum to all registered nurses that read:
Several nurses have asked whether they must still be SEIU members or pay
Union dues/fees. The answer is “No.” Since the Union has terminated the
contract the “Union Security” provisions which contain those obligations is not in
effect. Therefore, at this time, nurses have a choice to pay Union dues or not to
pay Union dues. That decision is entirely up to each individual nurse. If a nurse
no longer wishes to be a SEIU member, he or she should write a letter to that
Union resigning from membership. If a nurse no longer wants dues deducted
from their paycheck, he or she should write Human Resources a letter revoking
such authorization.
On September 14 the Union gave the Hospital another 10-day strike notice and on
September 26 a five-day strike happened. The Union continued to communicate with the
nurses concerning its view of the status of negotiations. Likewise the Union Free Nurses also
JD(SF)–48–08
5
10
15
20
25
30
35
40
45
50
3
continued their communications. They distributed a leaflet criticizing the Union; the leaflet
ended:
This is the best chance to end this!
Stop your union dues and resign from the union.
Sign and mail the card to call for an election.
A 10-day strike was planned for the holiday period, but this strike was canceled after the Union
and the Hospital reached a new contract. Meanwhile, a decertification petition was filed on
December 13; the Union won the election and remained the bargaining representative of the
nurses. During the labor dispute about 30-50 unit employees resigned their membership in the
Union and about 50-100 unit employees stopped paying dues and fees.
B. Professional Strikebreaker Allegation
California Labor Code, Sections 1132-1133, defines a “professional strikebreaker” as a
person, excluding supervisory personnel, who, over a 5-year period on at least three or more
occasions for two or more employers, seeks and obtains employment as a replacement for
employees who had been locked-out by the employer or who are engaged in a strike against
the employer. “Strike” is defined as any concerted act of more than 50 percent of the bargaining
unit employees in a lawful refusal to perform work. The statute forbids employers from hiring
“professional strikebreakers.” Criminal sanctions and/or fines can be imposed against both
employers and employees found to have violated the statute. During the two strikes described
above the Hospital hired what the Union believed were “professional strikebreakers” and
employees raised question to the Union about them.
In October the Union posted at the Hospital and/or distributed to employees of the
Hospital a flyer that reads, in pertinent part, as follows:
Professional Strike Breakers
Who they are and what the law says about them
It is illegal in California to hire a professional strike breaker or to work as a
professional strike breaker. A professional strikebreaker is a person who, in the
last five years:
• Worked on at least three occasions during a strike or lockout to
replace a striking or locked out employee
• And this work was done for two or more employers.
Any nurse who meets this criteria is considered a professional strike breaker. If a
nurse meets this criteria and then works for Pomona Valley Hospital during a
strike, that nurse has violated California law and is subject to a fine of up to
$1,000 and up to 90 days in jail.
Any employer that hires a professional strikebreaker also violates the law and is
subject to a fine of up to $1,000 and up to 90 days in jail. “Employer” is defined
as a person, partnership, firm, corporation, association, or other entity which
employs any person or persons to perform services for a salary, and includes
any person . . . acting as an agent of an employer, directly or indirectly.
JD(SF)–48–08
5
10
15
20
25
30
35
40
45
50
4
On October 3 the Union posted this same message on its webpage. The Union Free Nurses
responded by distributing a leaflet referring to the strikebreaker law and containing the following:
The legislation referred to is unenforceable because it is federally preempted and
therefore unconstitutional.
A similar law in Minnesota banning the hiring of permanent strike replacements
was struck down some years ago.
Employment relationships are governed by the National Labor Relations Act
(federal law), and states cannot interfere.
If states try to interfere (via one-sided laws like the California law the [the Union]
menacingly cites), the state treads on the federal right to hire and to work.
It is for that reason that courts have struck down such laws as federally
preempted and unconstitutional.
A decision of the US Court of Appeals in Employers Association, Inc. v. United
Steelworkers of America, 32 F.3d 1297 (8th Cir. 1994) struck down such laws.
So are you getting tired of half truths and purposeful deception?
The leaflet went on to encourage the nurses to continue in efforts to decertify the Union.
On October 15 the Union posted a message on its web page that contained the
following:
Mr. Inge, Vice President of Human Resources, has disputed our information
regarding the law and strike breakers. Our attorney has researched information
on strike breakers and the union stands by her information. I am glad to know
that Mr. Inge is reading the Local 121RN web site.
There is no evidence that any unit employees met the definition of “professional strikebreaker.”
However, in the past employers with whom the Union has a collective-bargaining relationship
have used third employers to supply employees to work during a strike; those employees may
have met the statutory definition of strikebreaker.
Analysis
I first emphasize the narrowness of the factual setting in this case. There has been no
specific finding to date that the professional strikebreaker law is, in fact, preempted by the Act.
As the Union points out in its brief, at the time the Union publicized the professional
strikebreaker law the precedent in the 9th Circuit was Chamber of Commerce v. Lockyer, 463
F.3d 1076 (2006), reversed Chamber of Commerce v. Brown, 554 U.S. _, 128 S. Ct. 2408
(2008). Although not directly on point, that precedent lends credence to the Union’s contention
that the issue of preemption was still very much an open matter at the time it distributed the
information. Moreover, the evidence shows that the Union merely accurately advised
employees of the existence of the professional strikebreaker law; it was unaccompanied by any
threats that the Union would seek to enforce the law. Finally, the information was disseminated
to employees who, upon reading the flyers or the webpage, could safely conclude that they
were not covered by the law; there is no evidence that any “professional strikebreaker” that was
employed or that was contemplating employment at the Hospital saw the Union’s information.
The General Counsel and the Charging Party argue that I should find that the law is
preempted and then look back at the statements made by the Union about the law and conclude
that they restrained and coerced employees in violation of their Section 7 rights. I decline to do
so. In Bill Johnson’s Restaurant v. NLRB, 461 U.S. 731 (1983), the Supreme Court held that
JD(SF)–48–08
5
10
15
20
25
30
35
40
45
50
5
the Board could not enjoin a well-founded lawsuit even it was filed for a retaliatory purpose. The
Court made clear, in footnote 5, however, that the Board may order a respondent to cease
prosecuting a lawsuit that is preempted by the Act. Id., at 737 fn. 5. In Loehman’s Plaza, 305
NLRB 663 (1991), a footnote 5 case, the Board examined the Supreme Court precedent
concerning the preemption of lawsuits directed at Section 7 activity and stated:
We, therefore, must address whether, and also when, state court lawsuits
seeking to enjoin peaceful union picketing or leafleting are preempted by Federal
law. (emphasis added)
Id. at 669. The Board concluded that the pre-complaint maintenance of lawsuit was not a
violation of the Act. The Board explained that once the General Counsel issued a complaint,
however, the issue of preemption was sufficiently resolved and that the continuation of the
lawsuit after that point was unlawful. In Allied Trades Council (Duane Reade, Inc.,) 342 NLRB
1010 (2004), another footnote 5 case, the Board concluded that the respondent violated the Act
by maintaining a lawsuit after the Regional Director issued a decision. Of course, there is no
lawsuit involved in this case and the Charging Party argues that therefore the cases do not
apply. But it would be incongruous to hold that legal proceedings to enforce the strikebreaker
law would not necessarily be unlawful ab initio but the mere recitation of that law would be
unlawful. Rather, the Constitutional concerns underlying the cases described above exist in this
case. The people of California through their elected representatives are entitled to test the outer
limits of the preemption doctrine and they consequently are entitled to publicize the laws they
enact, at least until struck down by superior authority. At the least the Board must have a
healthily respect for other constitutional processes and allow them to run their course before
declaring the mere publication of this law to be an unfair labor practice. This means, in my view,
that the before the Board can find an unfair labor practice based on a law or lawsuit that may be
preempted there must be some resolution of the preemption issue before the conduct alleged
can be an unfair labor practice. Until there is some specific resolution of the preemption issue
the parties should be allowed to do what they did in this case: the Union cited the strikebreaker
law and the Union Free Nurses responded that in their view the law was preempted. It follows
that I am without jurisdiction to now resolve the preemption issue because no unfair labor
practice would result regardless of how I decided the preemption issue at this point.
The General Counsel cites New Fairview Hall Convalescent Home, 206 NLRB 688
(1973) enfd. sub nom. Donovan v. NLRB, 520 F.2d 1316 (1975). In that case the employer
advised employees of a state law that forbid certain hospital employees from striking and
warned those employees if they struck they would be disciplined. The Judge and the Board
concluded that the employer violated Section 8(a)(1) by telling employees that it was unlawful
for them to strike because “[s]uch a State prohibition applied to Respondent’s employees would
interfere with their rights under Section 7” of the Act. (emphasis supplied) Id., at 747.
I conclude that New Fairview is not dispositive of the issue in this case. While it is correct that in
New Fairview there was no determination that the State law had been preempted and therefore
was inoperative prior to the employer’s statement to employees, it does not appear that the
issue had been raised or litigated in that case. And of course Section 8(b)(1)(A) differs from
Section 8(a)(1) in that Section 8(b)(1)(A) does not forbid interference with Section 7 rights. In
any event, New Fairview was decided before the decisions described above. Because there
had been no determination that the professional strikebreaker law was preempted at the time
the Union publicized its existence, I cannot conclude that the Union’s conduct was unlawful.
Assuming without deciding that the professional strikebreaker law is preempted and that
this conclusion can be applied retroactively, the General Counsel’s case still falls because he
has not shown that the Union’s statements would reasonably tend to restrain or coerce
JD(SF)–48–08
5
10
15
20
25
30
35
40
45
50
6
employees to whom the message was disseminated. This is so because he has not established
that any employee who met the definition of professional strikebreaker saw the Union’s
propaganda. Under these circumstances it is difficult to conclude that the propaganda could
reasonably tend to restrain or coerce employees in their right to continue to work during a strike.
The employer in New Fairview, in contrast, clearly told its employees that under the law it was
unlawful for them to strike. Here, the Union did not tell employees that it was unlawful for them
to work during a strike; instead the Union told the employees that it was unlawful for another
group of employees – professional strikebreakers – to work as strike replacements. It bears
repeating that the theory of the complaint is that the Union violated the Act by its
communications with the Hospital’s unit employees, none of whom met the definition of
professional strikebreaker; indeed, the complaint allegations specifically describe as unlawful
the Union’s communications with “Unit employees.”2 Nor is there evidence that the Union
attempted to mislead the Hospital’s unit employees that the California law applied to them even
if they did were not “professional strikebreakers.” The General Counsel’s argument to the
contrary presents a different case, one in which the Union attempted to mislead employees into
believing that they were professional strikebreakers and therefore subject to fines if they
exercised their right to work during a strike.3
I dismiss this allegation of the complaint.
C. Dues Allegation
In mid-October the Union posted and/or distributed at the Hospital a flyer that read:
Work with an expired contract . . . What does it mean?
The hospital and their representatives i.e. Managers, directors, and anti union
nurses have put out misleading and incorrect information regarding having “NO
CONTRACT”
In, truth the NLRA* requires management (Pomona Valley Hospital) to maintain
contract terms and conditions of employment while it bargains on a new
agreement. Abandoning or changing a pre-existing condition is an unfair labor
practice (ULP), giving the union a basis for filing an NLRB charge, calling a ULP
strike, or filing a challenge to a lockout.
YOU CONTINUE TO BE COVERED BY THE TERMS AND CONDITIONS OF
YOUR CONTRACT!
An employer (Pomona Valley Hospital) must maintain the status quo after the
expiration of a collective bargaining agreement until a new collective bargaining
agreement has been negotiated or the parties have bargained to impasse.
When a contract expires, a union can file a unilateral-change charge to enforce a
term on

2 I reject the General Counsel’s attempt in his brief to expand the nature of the complaint beyond unit
employees.
3 In his brief the General Counsel appears to argue that the Union attempted to mislead the
employees by its reference to “nurses” who met the definition of professional strikebreaker. But of course
the employees who worked as replacements during the strike were also nurses.
JD(SF)–48–08
5
10
15
20
25
30
35
40
45
50
7
the agreement that had been followed by the parties, a past practice independent
of the contract, or a past practice that conflicts with the contract.
Under the NLRA*, dues and fees may be collected back to the expiration of the
collective bargaining agreement (contract).
Many of you have inquired about the stop dues form being distributed by the
hospital and their representatives. You may have been mislead into believing
that you are not obligated to pay dues and fees during the period of negotiations.
This is untrue and retroactivity may occur prior or upon ratification of the contract.
Please ask yourselves why all the anti leaders are still paying dues. Could it be
they don’t want the possibility of owing more in a lump sum?
DUE AND FEE OBLIGATIONS REMAIN INTACT AND MAYBE COLLECTED
PRIOR OR UPON RATIFICATION OF THE CONTRACT.
WHEN YOU ARE NOT A MEMBER IN GOOD STANDING, YOU FORFEIT
YOUR VOICE, RIGHTS TO PARTICIPATE IN UNION EVENTS AND FORFEIT
YOUR VOTING PRIVILEGES.
*The National Labor Relations Board is an independent federal agency
created by Congress in 1935 to administer the National Labor Relations Act, the
primary law governing relations between unions and employers in the private
sector. The statute guarantees the right of employees to organize and to bargain
collectively with their employers, and to engage in other protected concerted
activity with or without a union, or to refrain from all such activity.
Analysis
Employees are not required to become or remain full members of a union. Those who
choose to become and remain full union members are protected under Section 8(a)(3) of the
Act. Unions may require voluntary members to pay dues and fees to obtain and retain
membership. Membership in a union typically entitles members to participate in union-related
matters such as the selection of union officers, contract ratification, strike votes and the like.
When an employer and a union have a collective-bargaining agreement that has a “union
security” provision the union may insist that all employees in the recognized unit to pay dues
and fees regardless of whether or not those employees are voluntary members of the union.
Applying these settled legal principles to the fact situation in this case, upon the expiration of the
collective-bargaining no employee could be compelled to continue to pay dues under a union-
security provision because that obligation expired with the contract. International Union of
District 50, UAW (Ruberoid Co.) 173 NLRB 87, fn. 2 (1968). However, those voluntary
members of the Union might be required to continue to pay dues in order to retain their Union
membership.
The issue in this case thus becomes whether the Union threatened employees that they
were required to pay dues under a union-security agreement. In his brief, the General Counsel
argues:
In the flyer, the Union’s representation to employees was that they continued to
be covered by the terms and conditions of the terminated CBA, including the
dues and fees obligations under the union-security clause.
JD(SF)–48–08
5
10
15
20
25
30
35
40
45
50
8
But the Union said no such thing. The first portion of the flyer merely accurately states the
general proposition that employers must maintain existing conditions of employment upon the
expiration of a contract. The flyer then continued:
Under the NLRA*, dues and fees may be collected back to the expiration of the
collective bargaining agreement (contract).
Many of you have inquired about the stop dues form being distributed by the
hospital and their representatives. You may have been mislead into believing
that you are not obligated to pay dues and fees during the period of negotiations.
This is untrue and retroactivity may occur prior or upon ratification of the contract.
Please ask yourselves why all the anti leaders are still paying dues. Could it be
they don’t want the possibility of owing more in a lump sum?
DUE AND FEE OBLIGATIONS REMAIN INTACT AND MAYBE COLLECTED
PRIOR OR UPON RATIFICATION OF THE CONTRACT.
WHEN YOU ARE NOT A MEMBER IN GOOD STANDING, YOU FORFEIT
YOUR VOICE, RIGHTS TO PARTICIPATE IN UNION EVENTS AND FORFEIT
YOUR VOTING PRIVILEGES.
For those unit employees who remained voluntary full members of the Union, the foregoing
statements are a reasonably accurate statement of their obligations; to remain full members of
the Union they had to continue to pay dues. While those dues and fees are not collectible
“Under the NLRA” pursuant to a union security provision because the contract had expired, that
statement viewed in context is insufficient to threaten employees with discharge if they failed to
make those payments. The last sentence described above seems directed to those employees
who are voluntary members. While a more complete description of the law might have included
an explanation that voluntary members could immediately terminate any obligation to pay dues
by resigning their membership from the Union, certainly the Union had no obligation to give this
fuller description without running afoul of the law. Indeed, both the pieces put out by the
Hospital and the Union Free Nurses did not contain a full description of the law either; neither
advised the employees that if they resigned from the Union they would not be entitled to
participate in significant internal union matters such as contract ratification. The General
Counsel cites United Auto Workers Local 785 (Dayton Forging), 281 NLRB 704, 707 (1986).
But that case makes my point because there the Union informed employees that they had to
pay dues in order to work at the employer; no such assertion was made the Union here. In
sum, I find the Union’s description did not sufficiently link continued dues payment with the
application of a union-security provision.
The General Counsel argues that the Union’s flyer breached its duty of fair
representation even if it did not directly link continued dues payment with enforcement of a
union-security provision. But I know of no case where the duty of fair representation has been
extended to monitor the propaganda published by a union in the midst of difficult collective
bargaining with an employer and a decertication effort by certain unit employees. Rather, I
assume that under California Saw & Knife Works, 320 NLRB 224(1995), enfd. 133 F.3d 1012
(7th Cir. 1988), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998) and its progeny the
Union has satisfied its obligation to explain to the Hospital’s unit employees their rights
regarding membership and their rights and obligations under a union-security clause.
JD(SF)–48–08
5
10
15
20
25
30
35
40
45
50
9
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.4
ORDER
The complaint is dismissed.
Dated, Washington, D.C., November 19, 2008
____________________
William G. Kocol
Administrative Law Judge

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.