St. Vincent Medical Center

National Labor Relations Board - Board Decisions

Feb 15, 2007

349 N.L.R.B. 365 (N.L.R.B. 2007)

ST. VINCENT MEDICAL CENTER
349 NLRB No. 36
365
St. Vincent Medical Center, a Division of Catholic
Healthcare West, Southern California and
Healthcare Employees Union, Local 399, Affili-
ated with the Service Employees International
Union.1 Case 31–CA–24325
February 16, 2007
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On March 31, 2003, the National Labor Relations
Board issued a Decision and Order in this proceeding,2 in
which it found that the Respondent had not violated Sec-
tion 8(a)(3) and (1) of the Act by discharging the em-
ployees in its respiratory care (RC) department and sub-
contracting out their work shortly before a representation
election involving those employees. Subsequently, the
Union petitioned the United States Court of Appeals for
the Ninth Circuit for review of the Board’s Order dis-
missing the unfair labor practice complaint against the
Respondent. On September 11, 2006, the Ninth Circuit
granted the Union’s petition for review and “remanded
this case to the Board for further proceedings.”3
On January 11, 2007, the Board notified the parties to
this proceeding that it had decided to accept the remand
from the Ninth Circuit, and that additional briefing was
not warranted at this time.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
We accept the court’s remand as the law of the case.
As discussed below, the court’s decision compels the
conclusion that the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging the RC employees and
subcontracting out their work.
Facts
The Respondent is an acute care hospital in Los Ange-
les, California. In mid-1999, the Union intensified its
efforts to organize the hospital’s technical employees,
and the employees in the RC department were the core
supporters of the organizing campaign. The RC employ-
ees comprised a majority of the organizing committee,
and they “discussed the Union with co-workers at work,
openly talked to Union organizers, and passed out pro-
union fliers in front of the hospital.” 463 F.3d at 914.
About 95 percent of the RC employees signed union au-
thorization cards. The Respondent was aware of their

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 338 NLRB 888.
3 463 F.3d 909, 924 (withdrawing an earlier opinion and dissent ap-
pearing at 441 F.3d 670 (Mar. 17, 2006)).
union support. On November 10, 1999, the Union dis-
tributed a flier announcing that it was a “few weeks”
away from filing an election petition with the Board, and
that once the election petition was filed, the Board would
set an election within 45 to 60 days.
The Respondent had had quality control problems in
the RC department for 13 years, and has attributed the
problems to department management. The RC depart-
ment’s manager was replaced in early 1999, but prob-
lems remained. In July 1999, the same month that the
Union intensified its organizational campaign, Zita Uy,
assistant administrator for the RC department, met with
another manager and discussed the possibility of subcon-
tracting out the work of the RC department. They agreed
to reassess the situation “later on that year.” Id. at 915.
Conditions did not improve and on November 18, 1999,
after the Union announced that it was close to filing an
election petition with the Board, management again dis-
cussed subcontracting. On November 19, Uy was au-
thorized to investigate possible subcontracting vendors.
On December 20, 1999, management met again to dis-
cuss subcontracting, and on December 22, the Respon-
dent’s president approved “moving forward with finding
a subcontractor.” Id. On December 27, Uy announced
to the RC employees that management intended to inves-
tigate outsourcing the work of the RC department and
that it would take between 30 and 60 days to investigate
possible subcontractors. On January 3, 2000, Uy con-
tacted two companies (Total Rehab Care and Interstate
Rehab Care) and solicited proposals for taking over the
RC department before February 15, 2000. On January 5,
2000, the Union filed a petition for an election with the
Board in a technical unit including the 27 RC employees.
On January 21, 2000, the parties stipulated that an elec-
tion would be conducted by the Board on February 18,
2000. On January 26, 2000, Total Rehab Care and Inter-
state Rehab Care submitted a combined proposal under
the name of California Respiratory Services, which the
Respondent accepted the same day.
On February 1, 2000, about 3 weeks after the Union
filed its election petition with the Board, management
informed the RC department of the outsourcing decision.
California Respiratory Services would take over the RC
department, and that, effective February 5, 2000, Cali-
fornia Respiratory Services would directly employ the
RC employees. The RC department employees were not
eligible to vote in the February 18 election because they
were no longer employed by the Respondent. On Febru-
ary 2, 2000, the Union filed an unfair labor practice
charge, alleging that the Respondent subcontracted out
the work of the RC department to prevent the RC de-
partment employees from voting in the union election, in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD366
violation of Section 8(a)(3) and (1) of the Act. The com-
plaint issued on March 22.
The matter was heard before an administrative law
judge who concluded that the Respondent had not vio-
lated the Act as alleged because the General Counsel had
not established that the Respondent’s subcontracting de-
cision was discriminatorily motivated. The Board
adopted the judge’s decision, but further concluded that
even assuming that the General Counsel had met his bur-
den of showing that antiunion animus was a motivating
factor in the Respondent’s decision to subcontract, the
Respondent had established that it would have taken the
same action even in the absence of union activity.
Above at fn. 4. As set forth above, the Union filed a pe-
tition for review in the Ninth Circuit, which granted the
petition and remanded the case to the Board for further
proceedings. The court found that the Board’s conclu-
sions were “not supported by substantial evidence on the
record as a whole.” 463 F.3d at 924. The court’s find-
ings and conclusions are the law of the case.
Analysis
In finding that the Board erred in dismissing the Sec-
tion 8(a)(3) and (1) allegations, the court applied Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied, 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983). The court concluded that the General Coun-
sel met his burden of showing that antiunion animus was
a motivating factor in the Respondent’s decision to sub-
contract out the work of the RC department, and that the
Respondent failed to demonstrate that the same action
would have taken place even in the absence of the pro-
tected conduct.
First, the court found “ample evidence that St. Vincent
knew about the union activity in the hospital in general,
and in the RC department in particular.” 463 F.3d at
920.
Second, the court found that the “the timing of [the]
decision raises an unmistakable inference of anti-union
animus.” Id. The court emphasized that the Respondent
subcontracted out the RC department effective February
5, 2000, a month after the Union filed its petition for an
election with the Board, and less than 2 weeks before the
scheduled election. In addition, the decision to outsource
operation of the RC department disenfranchised 25 per-
cent of the eligible voters (95 percent of whom had al-
ready expressed their desire to join the Union). Id.
The court also found the timing of the decision to sub-
contract was “suspicious” because the management prob-
lems in the RC department existed for more than a dec-
ade before the Respondent decided to subcontract out the
work, and there was “no obvious precipitating event for
the subcontracting decision other than the looming union
election.” Id. at 920–921.
Third, the court found that the Board had erred in rely-
ing on evidence that productivity in the RC department
improved after the subcontracting, because such evidence
is irrelevant. Id. at 921–922.
Fourth, the court found the Respondent’s explanation
for contracting out the entire department, rather than
simply the managerial function, to lack plausibility. Al-
though the Respondent claimed that outsourcing the RC
management while continuing to directly employ the RC
employees would create a “divided accountability” prob-
lem, the court found that the divided accountability prob-
lem was not alleviated by the ultimate subcontracting
arrangement because, after the subcontracting, the RC
department managers and employees were not directly
employed by the same employer.4
In sum, based on the following findings, the court con-
cluded that the General Counsel met his Wright Line
burden: “(1) the General Counsel presented unrebutted
evidence concerning St. Vincent’s knowledge of union
activity, (2) the timing of St. Vincent’s decision to sub-
contract raised a compelling inference of anti-union ani-
mus, (3) the ALJ mistakenly relied on post-
subcontracting evidence to establish the cause of the sub-
contracting decision, and (4) St. Vincent’s business justi-
fication was unreliable, therefore raising the inference
that its justification was merely a pretext for anti-union
animus.” Id. at 923.
Turning to the Respondent’s affirmative defense, the
court concluded that the Respondent did not meet its
burden of showing that it would have taken the same
action in the absence of the employees’ union activity.
The court rejected the Board’s reliance on the Respon-
dent’s implementation of its subcontracting decision
“within the 30-to-60 day timeframe it announced prior to
the filing of the petition for a representation election.”
Id. at 923, quoting 338 NLRB 888 fn. 4. The court found
that the Respondent’s December 27, 1999 announcement
did not establish that the Respondent would have subcon-
tracted out the RC department when and as it did, in the
absence of union activity. Id. at 924. The court further
found that “St. Vincent’s witnesses did not present a con-
sistent or plausible explanation for why it was necessary
to subcontract out the work of the entire RC department

4 Under the subcontracting arrangement, Total Rehab Care hired all
the former St. Vincent managers, and it then contracted with California
Respiratory Services to provide management services to the RC de-
partment. The RC therapists, on the other hand, worked directly for
California Respiratory Services. As observed by the court, “[t]his ar-
rangement did not place the RC therapists and the RC department man-
agers in the same organization.” Id. at 923.
ST. VINCENT MEDICAL CENTER 367
in order to obtain better managers.” Id. The court there-
fore rejected the Respondent’s business justification and
concluded that “the true motive for the subcontracting
decision was anti-union animus.” Id.
Having accepted the court’s remand as the law of the
case, the court’s findings and conclusions are necessarily
binding upon us. We are therefore compelled to con-
clude that the Respondent violated Section 8(a)(3) and
(1) by discharging the RC department employees and
subcontracting out their work.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by discriminatorily subcontracting the work of
the employees in the respiratory care department and by
discharging those employees because they participated in
union activity.
4. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily subcon-
tracting the work of the employees in the respiratory care
department and by discharging those employees, we shall
order the Respondent to cease and desist from engaging
in such unlawful conduct. We shall also order the Re-
spondent to restore its respiratory care department as it
existed on or before February 5, 2000.5 We shall order
the Respondent to offer to its 27 unlawfully discharged
respiratory care department employees full reinstatement
to their former jobs, without prejudice to their seniority
or other rights or privileges previously enjoyed, and to
make them whole for any loss of earnings and benefits
they may have sustained by reason of the Respondent’s
unlawful conduct. Backpay shall be computed in accor-
dance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as provided in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent will
also be ordered to remove from its files any references to
the subcontracting and the discriminatory discharges of

5 At the compliance stage of this proceeding, the Respondent may
introduce evidence that was not available prior to the unfair labor prac-
tice hearing, if any, to demonstrate that resumption of an in-house
respiratory care department would be unduly burdensome. Reno Hil-
ton, 326 NLRB 1421 fn. 4 (1998), enfd. 196 F.3d 1275 (D.C. Cir.
1999); Lear Siegler, Inc., 295 NLRB 857, 861–862 (1989).
its 27 respiratory care employees and to notify the dis-
criminatees in writing that this has been done and that
their discharges will not be used against them in any
way.
ORDER
The National Labor Relations Board orders that the
Respondent, St. Vincent Medical Center, a division of
Catholic Healthcare West, Southern California, Los An-
geles, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discriminating against its respiratory care employ-
ees by discharging them, discontinuing its respiratory
care department, and contracting out their work because
they supported the Union.
(b) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Reestablish and resume its respiratory care depart-
ment as it existed prior to February 5, 2000.
(b) Within 14 days from the date of this Order, offer its
unlawfully discharged respiratory care department em-
ployees full reinstatement to their former jobs, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(c) Make the discharged respiratory care employees
whole for any loss of earnings and other benefits result-
ing from their discharge, in the manner set forth in the
remedy section of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any references to the unlawful subcontract-
ing or discharges of its respiratory care employees, and
within 3 days thereafter, notify each of those employees
in writing that this has been done and that their dis-
charges will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Los Angeles, California, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,

6 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD368
on forms provided by the Regional Director for Region
31, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 5,
2000.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
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.

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.”
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 discriminate against our respiratory care
employees by discharging them, discontinuing our respi-
ratory care department, and contracting out their work
because they supported the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL reestablish and resume our respiratory care
department as it existed prior to February 5, 2000.
WE WILL, within 14 days from the date of the Board’s
Order, offer our unlawfully discharged respiratory care
department employees full reinstatement to their former
jobs, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make the discharged respiratory care em-
ployees whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful subcontracting or discharges of our respiratory
care employees, and WE WILL, within 3 days thereafter,
notify each of those employees in writing that this has
been done and that their discharges will not be used
against them in any way.
ST. VINCENT MEDICAL CENTER, A DIVISION OF
CATHOLIC HEALTHCARE WEST, SOUTHERN
CALIFORNIA