Novato Healthcare Center,

Docket Number20-CA-168351

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Novato Healthcare Center and National Union of Healthcare Workers (NUHW-CNA). Case 20– CA–168351

September 29, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On April 20, 2017, Administrative Law Judge Amita Baman Tracy issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief. The General Counsel filed a cross-exception and a supporting brief, the Respondent filed an answering brief, and the General Counsel filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2

1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In addition, some of the Respondent’s exceptions allege that the judge’s rulings, findings, and conclusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respondent’s contentions are without merit.

There are no exceptions to the judge’s dismissal of the complaint allegation that the Respondent threatened employees with unspecified reprisals if they elected the Union to represent them.

We affirm the judge’s finding that credible testimony from the General Counsel’s witnesses establishes that none of the Respondent’s employees on station four on the morning of October 7, 2015, slept while on duty—as opposed to while on break. In so finding, we do not rely on the judge’s statement that Director of Nutritional Services Teresa Gilman testified that perhaps 20 minutes passed between the time she looked at her car clock and the time she first approached station four that morning. Rather, we agree with the judge’s additional finding that Gilman’s detailed testimony establishes that she might have first approached station four after 4:10 a.m., and thus might have observed employees sleeping while on break.

2 We agree with the judge’s conclusion that, under Wright Line, 251 NLRB 1083 (1980) (subsequent history omitted), the General Counsel satisfied his initial burden to prove that employees’ union activity was a motivating factor in the Respondent’s decision to suspend and discharge them by showing union activity, the Respondent’s knowledge of union activity, and the Respondent’s animus against union activity. The General Counsel is not required to “demonstrate some additional, undefined ‘nexus’ between the employee’s protected activity and the

and to adopt the recommended Order as modified and set forth in full below.3

We agree with the judge that under all of the circumstances here, the Respondent unlawfully interrogated employee Narvius Metellus when Director of Staff Development Gay Rocha asked him how he intended to vote in the upcoming representation election. Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).4 Our dissenting colleague correctly observes that an employer may, under certain limited circumstances, lawfully ask an open and active union supporter general questions about the union. But the Board

adverse action.” Libertyville Toyota, 360 NLRB 1298, 1301, fn. 10 (2014), enfd. sub nom. AutoNation v. NLRB, 801 F.3d 767 (7th Cir. 2015).

Chairman Miscimarra disagrees. He notes that in Wright Line itself, the Board stated that the General Counsel must make “a prima facie showing sufficient to support the inference that protected conduct was a ‘motivating factor’ in the employer’s decision.” 251 NLRB at 1089. Accordingly, Chairman Miscimarra believes the General Counsel must establish a link or nexus between the employee’s protected activity and the employer’s decision to take the challenged adverse employment action. See, e.g., Tschiggfrie Properties, Ltd, 365 NLRB No. 34, slip op. at 1 fn. 1 (2017) (Miscimarra). Applying this standard here, Chairman Miscimarra finds the General Counsel made the requisite showing.

In affirming the judge’s finding that employees engaged in protected union activity, we find it unnecessary to rely on Fresh & Easy Neighborhood Market, 361 NLRB No. 12 (2014), cited by the judge, a case that involved nonunion protected concerted activity. Additionally, in affirming the judge’s finding that the Respondent bore animus towards employees’ protected union activity, we find it unnecessary to rely on the Respondent’s inclusion of its labor consultants in its decision to suspend and discharge them.

3 We shall modify the judge’s recommended Order to conform to the violations found and the Board’s standard remedial language and substitute a new notice to conform to the Order as modified.

Chairman Miscimarra notes that in the remedy section of the judge’s decision, adopted by his colleagues, the judge ordered the Respondent to compensate the discriminatees for any search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings, in accordance with the Board majority’s decision in King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859

F.3d 23 (D.C. Cir. 2017). For the reasons stated in his separate opinion in King Soopers, slip op. at 12–16, Chairman Miscimarra would adhere to the Board’s former approach of treating search-for-work and interim employment expenses as an offset against interim earnings.

The General Counsel seeks a make-whole remedy that includes consequential damages incurred as a result of the Respondent’s unfair labor practices. The relief sought would require a change in Board law. Having duly considered the matter, we are not prepared at this time to deviate from our current remedial practice. Accordingly, we decline to order this relief at this time. Laborers’ International Union of North America, Local Union No. 91 (Council of Utility Contractors, Inc. and Various Other Employers), 365 NLRB No. 28, slip op. at 1 fn. 2 (2017).

4 We do not rely on any implication in the judge’s decision that an employer’s questioning of open and active union supporters about their union sentiments, in the absence of threats or promises, is per se coercive. See Rossmore House, above, at 1177–1178 (overruling PPG Industries, 251 NLRB 1146 (1980)).

365 NLRB No. 137

2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

has long recognized that questions like Rocha’s—going specifically to how an employee himself intends to vote—have a uniquely coercive tendency. See, e.g., Royal Laundry, 277 NLRB 820, 830 (1985) (“The Board jealously guards the secrecy of the voting booth.”); see also Phillips 66 (Sweeny Refinery), 360 NLRB 124, 128 (2014) (distinguishing lawful general questions about union activity from specific coercive inquiries about employees’ own opinions). Rocha’s position as a high-level management official with no regular working relationship with Metellus compounded the coercive tendency of her question. See Samsung Electronics America, Inc., 363 NLRB No. 105, slip op. at 3 (2016). And Rocha’s subsequent comments that voting for the Union would have implications on Metellus’s pay and that the Union could possibly take part of his paycheck clearly communicated the Respondent’s preference that Metellus should vote against representation. Under these circumstances, as well as those discussed by the judge, we find that Rocha’s question reasonably tended to restrain, coerce, or interfere with Metellus’s rights under Section 7, and accordingly violated Section 8(a)(1) of the Act.5

ORDER

The National Labor Relations Board orders that the Respondent, Novato Healthcare Center, Novato, California, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Coercively interrogating employees about their union activities.

5 Applying the totality of the circumstances test set forth in Rossmore House, above, Chairman Miscimarra would not find that Rocha unlawfully interrogated Metellus. Rather, the Chairman would find that Rocha simply sought to engage Metellus in a lawful conversation about the union campaign. The Board has long recognized that such back-and-forth exchanges between employer representatives and open and active union supporters, like Metellus, are not coercive. Rossmore House, above at 1178. Metellus wore prounion regalia to work for weeks, and he was openly wearing prounion regalia at the time of the conversation with Rocha. Given the circumstances surrounding the conversation, the Chairman does not believe Metellus could reasonably suppose that Rocha’s question was designed to elicit information from which Rocha might take action against him or any other employee. See Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985) (questioning not coercive where it did not reasonably appear questioner was seeking to obtain information in order to take adverse action against employees). Indeed, Metellus immediately and truthfully replied to Rocha’s question, stating that he planned to vote for the Union and did not care about the union dues coming out of his pay. Cf. Cardinal Home Products, Inc., 338 NLRB 1004, 1009 (2003)...

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