Sodexo America LLC

National Labor Relations Board - Board Decisions

Jun 13, 2013

359 N.L.R.B. 1178 (N.L.R.B. 2013)

1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 135
Sodexo America LLC and Patricia Ortega

Sodexo America LLC, and Keck Hospital of USC,
formerly known as USC University Hospital and
Service Workers United

Keck Hospital of USC, formerly known as USC Uni-
versity Hospital and National Union of
Healthcare Workers. Cases 21–CA–039086, 21–
CA–039109, 21–CA–039328, and 21–CA–039403
June 13, 2013
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On July 3, 2012, the National Labor Relations Board
issued a Decision and Order Remanding in Part in this
proceeding, finding that the Respondents violated Sec-
tion 8(a)(1) of the Act by maintaining an unlawfully
broad off-duty employee no-access rule.
1
The Board
severed and remanded to the Administrative Law Judge
the issue of whether Respondent Keck Hospital of USC’s
disciplining of four employees for violating the unlawful
rule also violated Section 8(a)(1).
2

On January 18, 2013, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. Respondent
Keck Hospital of USC filed exceptions, and the Acting
General Counsel filed an answering brief. The Acting
General Counsel also filed a limited exception.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
3
and
brief and has decided to affirm the judge’s rulings, find-

1 Sodexo America, LLC, 358 NLRB 667 (2012) (Sodexo I).
2 Id., slip op. at 3.
3 The Respondent Keck Hospital of USC requests a stay of the
Board’s proceeding in this case. In support, it contends that the Board
lacks jurisdiction over this case because the administrative record in the
underlying proceeding, Sodexo I, supra, has been filed with the U.S.
Court of Appeals for the District of Columbia Circuit, and that the court
has, on its own volition, “ordered all further proceedings in the case
held in abeyance pending further order” in light of its Noel Canning
ruling. Therefore, Keck Hospital argues, the Board should stay further
proceedings pursuant to the order of the court. The request is denied.
In Sodexo I, we found unlawful the Respondents’ no-access rule for
off-duty employees. We issued a final order based on that finding, and
it is now currently before the court. But we severed and remanded to
the judge for further proceedings the issue of the legality of the disci-
pline meted out pursuant to the unlawful no-access rule. Thus, the
Board retained jurisdiction over that part of the case. Moreover, the
Board’s jurisdiction over that part of the case is not affected by the
possibility that an adverse decision by the court might moot the re-
manded proceedings. See, e.g., Pacific Beach Hotel, 357 NLRB 2209
(2011) (deciding an issue severed in 356 NLRB 397 (2011), enfd. sub
nom. NLRB v. HTH Corp., 693 F.3d 1051 (9th Cir. 2012), while that
case was being reviewed by the Ninth Circuit and the court’s decision
could have mooted the case before the Board).
ings, and conclusions and to adopt the recommended
Order as modified.
4

ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Keck
Hospital of USC, formerly known as USC University
Hospital, Los Angeles, California, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Threatening to arrest, verbally warning, suspend-
ing, demoting, or otherwise disciplining employees who
violate unlawful rules by engaging in conduct that impli-
cates the concerns underlying Section 7 of the Act.”
2. Substitute the following for paragraph 2(c).
“(c) Within 14 days from the date of the Board’s Or-
der, remove from its files any reference to the unlawful
suspension and demotion of Michael Torres and the un-
lawful verbal warnings given to Alex Correa, Ruben Du-
ran, and Noemi Aguirre, and within 3 days thereafter
notify the employees in writing that this has been done
and that the unlawful discipline will not be used against
them in any way.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten to arrest, verbally warn, sus-
pend, demote, or otherwise discipline employees who

4 We shall modify the judge’s Order to conform to our standard re-
medial language and substitute a new notice to conform to the Order as
modified.
SODEXO AMERICA, LLC 1179

violate unlawful rules to engage in conduct that impli-
cates the concerns underlying the rights listed above.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the rights
listed above.
WE WILL make Michael Torres whole for any loss of
earnings and other benefits resulting from his unlawful
suspension and demotion, plus interest compounded dai-
ly.
WE WILL compensate Michael Torres for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file a report with the Social Se-
curity Administration allocating his backpay award to the
appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful verbal warnings given to Alex Correa, Ruben Duran,
and Noemi Aguirre and the unlawful suspension and
demotion of Michael Torres, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that the unlawful discipline will not be
used against them in any way.
KECK HOSPITAL OF USC, FORMERLY KNOWN
AS USC UNIVERSITY HOSPITAL

Alice J. Garfield, Esq., for the General Counsel.
Linda Van Winkle Deacon, Esq., for Respondent, Keck Hospi-
tal of USC.
Chad T. Wishchuk, Esq. (Marks, Finch, Thorton & Baird,
LLP), of San Diego, California, for Respondent Sodexo.
Florice Orea Hoffman, Esq. (The Law Offices of Florice Hoff-
man), of Orange, California, for the Charging Party.
DECISION ON REMAND
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Los Angeles, California, on December 5, 2012,
pursuant to the Board’s Order remanding the case to me for
further consideration. Sodexo America, LLC, 358 NLRB 647
(2012). In that case the Board found a no-access rule to be
unlawful and that the Hospital disciplined Michael Torres, Alex
Correa, Ruben Duran, and Noemi Aguirre pursuant to the un-
lawful rule. The Board remanded the case to me:

[W]ith instructions to reopen the record and determine wheth-
er the activity of the four-named employees implicated the
concerns underlying Section 7. If so, the discipline violated
Section 8(a)(1) of the Act.

In this regard the complaint, as amended, alleges:

10. (a) Since at least on or about December 2, 2009.
Respondent Hospital, by issuing an employee rule book
and by masking oral and Intranet announcements, has
maintained the following rules:

Off-duty employees are not allowed to enter or re-enter
the interior of Respondent Hospital or any other work area
outside Respondent Hospital except to visit a patient, re-
ceive medical treatment or to conduct hospital-related
business.

1. An off-duty employee is defined as an employee who
had completed his/her assigned shift.
2. Hospital-related business is defined as the pursuit of
the employee’s normal duties or duties as specifically di-
rected by management.
3. Any employee who violates this policy will be subject
to disciplinary action.

(b) On or about May 5, 2010, Respondent hospital, by
Officer Fuentes, at its facility, threatened to arrest an em-
ployee if the employee did not leave the Respondent Hos-
pital’s facility.

12. (a) On or about the dates set forth opposite their
names, Respondent Hospital engaged in the following
conduct as to the employees of Respondent Hospital
names below:

Date Conduct
May 4, 2010 suspended Michael Torres
May 13, 2010 demoted Michael Torres
June 25, 2010 verbally warned Ruben Duran
June 25, 2010 verbally warned Alex Corea
June 25, 2010 verbally warned Noemi Aguirre

(b) Respondent Hospital engaged in the conduct de-
scribed above in paragraph 12(a) because the named em-
ployees of Respondent Hospital assisted the NUHW and
engaged in concerted activities, and to discourage employ-
ees of Respondent from engaging in these activities.
(c) Respondent Hospital engaged in the conduct de-
scribed above in paragraph 12(a) because the named em-
ployees of Respondent Hospital were alleged to have vio-
lated the rules described above in paragraph 10.

At the hearing the parties stipulated that the activities of the
employees covered these allegations in the complaint “impli-
cate concerns underlying Section 7 of the Act.”
CONCLUSION OF LAW
The Hospital has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act by threatening to arrest an employee if
he did not leave the Hospital, verbally warning Alex Correa,
Ruben Duran, and Noemi Aguirre, and suspending and demot-
ing Michael Torres because they entered the Hospital while off
duty to engage in conduct that implicate concerns underlying
Section 7 of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent, having discriminatorily
suspended and demoted an employee, must make him whole
for any loss of earnings and other benefits. Backpay shall be
computed with interest at the rate prescribed in New Horizons
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
Respondent shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discriminatee(s)
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year, Latino Express, Inc., 359 NLRB 518 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Keck Hospital of USC, formerly known as
USC University Hospital, Los Angeles, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to arrest, verbally warning, suspending, de-
moting, or otherwise disciplining employees because they enter
the Hospital while off duty to engage in conduct that implicate
concerns underlying Section 7 of the Act.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Michael Torres whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(b) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board

1 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 pur-
poses.

or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discipline and
within 3 days thereafter notify the employees in writing that
this has been done and that it will not be used against them in
any way.
(d) Within 14 days after service by the Region, post at its fa-
cility in Los Angeles, California, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 1, 2009.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”