Los Robles Regional Medical Center a/k/a Los Robles Hospital & Medical Center, (2023)

• Date: 10 August 2023

372 NLRB No. 120

NOTICE: This opinion is subject to formal revision before publication in the

bound volumes of NLRB decisions. Readers are requested to notify the Ex-

ecutive 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.

Los Robles Regional Medical Center d/b/a Los Robles

Hospital & Medical Center and Service Employ-

ees International Union Local 121 RN

Los Robles Regional Medical Center d/b/a Los Robles

Hospital & Medical Center and West Hills Hos-

pital d/b/a West Hills Hospital & Medical Cen-

ter and Riverside Healthcare System, L.P. d/b/a

Riverside Community Hospital and Service Em-

ployees International Union Local 121 RN

Riverside Healthcare System, L.P.d/b/a Riverside

Community Hospital and Service Employees In-

ternational Union Local 121 RN. Cases 21–CA–

261288, 31–CA–261001, 31–CA–261680, 31–CA–

261874, 31–CA–263992, and 31–CA–265832.

August 10, 2023

DECISION AND ORDER

BY CHAIRMAN MCFERRAN ANDMEMBERS KAPLAN AND

WILCOX

On July 8, 2022, Administrative Law Judge Lisa D.

Ross issued the attached decision. The Respondents

filed exceptions and a supporting brief, the General

Counsel filed an answering brief, and the Respondents

filed a reply brief. In addition, the General Counsel filed

exceptions and a supporting brief, the Respondents 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 exceptions1and briefs and has decided to

affirm the judge’s rulings, findings,2and conclusions and

1No exceptions were filed to the judge’s dismissal of the allegations

that Respondent Los Robles Regional Medical Center d/b/a Los Robles

Hospital & Medical Center (Respondent Los Robles) violatedSec.

8(a)(5) and (1) by unilaterally expanding its centralized order entry

(COE) system and by failing to provide information that the Union

requested regarding unit employee Danica Dubaich’s discipline.

2The Respondents have excepted to some of the judge’s credibility

findings. The Board’s established policy is not to overrule an adminis-

trative law judge’s credibility resolutions unless the clear preponder-

ance of all the relevant evidence convinces us that th ey 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.

We affirm the judge’s finding that Respondent Los Robles, through

Rehabilitation Services Vice President Kimberly Hebert, made coercive

threats to therapists to dissuade them from organizing in violation of

Sec. 8(a)(1). In so doing, we find it unnecessary to rely on Hebert’s

inaccurate statement that abstentions from voting would result in “yes”

votes for the Union. Instead, we affirm the judge based only on

Hebert’s statements that (1) unionizing would lead to a hiring freeze

and make it difficult to get paid time off and (2) wages and cost-of-

living increases would be frozen if employees unionized. We note that,

in addressing the threat allegation, the judge provided extensive detail

about the antiunion flyers Hebert handed out before making these

statements, but the General Counsel did not allege that these flyers

violated Sec. 8(a)(1).

We also affirm the judge’s finding that Respondent Los Robles vio-

lated Sec. 8(a)(5) and (1) by withholding an annual cost-of-living in-

crease from all members of the Professional Unit. We note that the

judge did not address the General Counsel’s related allegation that

Respondent Los Robles violated Sec. 8(a)(3) and (1) by this same con-

duct. Because finding the 8(a)(3) violation would not materially affect

the remedy, however, we find it unnecessary to pass on that allegation.

Unlike his colleagues, Member Kaplan would pass on this allegation

and dismiss it, because the General Counsel clearly failed to meet her

burden under 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). In doing so,

he notes that Respondent Los Robles withheld this cost-of-living in-

crease from represented and unrepresented employees alike, so there is

no disparate treatment. And even assuming arguendo that the General

Counsel met her initial Wright Line burden, the Respondent showed it

would have withheld this increase regardless of any union activity due

to the economic impact of the COVID-19 pandemic. Based on the

circumstances, he is unwilling to infer that the Respondent withheld

cost-of-living increases from employees nationwide simply to hide its

animus towards one group of unionized employees.

In addition, we affirm the judge’s finding, for the reasons stated in

her decision, that Respondent Riverside Healthcare System, L.P. d/b/a

Riverside Community Hospital (Respondent Riverside) violated Sec.

8(a)(5) and (1) when it unilaterally implemented new usage, storage,

and access policies for its N95 masks and other personal protective

equipment (PPE). Member Kaplan would not find that Respondent

Riverside violated the Act by failing to provide the Union with notice

and an opportunity to bargain over its decision to implement the new

N95 and PPE usage and storage policies. He does not agree with the

judge’s finding tha t Respondent Riverside failed to demonstrate a dire

shortage of N95 masks and other PPE, and he would find that exigent

circumstances brought on by the COVID-19 pandemic excused Re-

spondent Riverside’s obligation to bargain over the decision to change

the policies. Member Kaplan joins his colleagues, however, in finding

that Respondent Riverside violated Sec. 8(a)(5) and (1) by failing to

engage in effects bargaining regarding the changed N95 and PPE poli-

cies. See Port Printing Ad & Specialties, 351 NLRB 1269, 1270

(2007), enfd. 589 F.3d 812 (5th Cir. 2009).

Further, we agree with the judge, for the reasons stated, that Re-

spondent Los Robles, Respondent Riverside, and Respondent West

Hills Hospital d/b/a West Hills Hospital & Medical Center (Respondent

West Hills) violated Sec. 8(a)(5) by unilaterally creating and imple-

menting the Pandemic Pay Program and that Respondent Los Robles

violated Sec. 8(a)(5) by unilaterally rescinding the Pandemic Pay Pro-

gram for the Professional Unit on June 6, 2020. Member Kaplan agrees

with these findings. However, because the Pandemic Pay Program was

only designed as a temporary measure to address patient shortages

during the initial stages of the COVID-19 pandemic, Member Kaplan

would not order Respondent Los Robles to reinstate this program.

Finally, for the reasons stated in her decision, we adopt the judge’s

dismissal of the allegation that Respondent Los Robles violated Sec.

8(a)(5) by bypassing the Union and dealing directly with the therapists

about weekend schedulin g and her dismissal of the allegation that Re-

spondent Los Robles violated Sec. 8(a)(5) by failing to provide the

DECISIONSOF THE NATIONAL LABOR RELATIONS BOARD

2

Union with information it requested in connection with the expanded

COE system. As to the alleged direct dealing violation, the judge found

that the Respondent’s January 7, 2020 email to the therapistsaddressed

employee concerns regarding their work schedules and clarified that the

therapists’ schedules would remain unchanged in light of the Union’s

recent certification. The judge thus found that the January 7 email was

responsive to employee confusion over work schedules and did not

constitute an effort by the Respondent to deal directly with the thera-

pists for purposes of establishing or changing those schedules. See,

e.g., Permanente Medical Group, 332 NLRB 1143, 1144 (2000) (a

direct dealing violation occurs when, among other things, a respond-

ent’s communication with employees is “for the purpose of establishing

or changing wages, hours, and terms and conditions of employment”).

In these circumstances, we agree with the judge’s dismissal of the

allegation that the Respondent violated Sec. 8(a)(5) by dealing directly

with employees.

In addition, as to the Respondent’s alleged refusal to provide the Un-

ion with the relevant information it requested on July 3, 2020 regarding

the COE system, we note that the Respondent timely and credibly

asserted that the Union’s information request was overly burdensome

and sought an accommodation with the Union. The Union apparently

rejected the accommodation offer and chose not to bargain over it.

Instead, the Union provided a clarification to the Respondent about the

extent of the information sought. The Respondent understood the Un-

ion to be seeking the same information as the initial request,and the

judge ultimately found that this clarification did not reduce the overly

burdensome nature of the Union’s initial request. Nevertheless, the

Respondent again so ught accommodative bargain ing with the Union

over the cost of document production, but the Union declined to do so.

Our colleague asserts that the Respondent should have at least provided

the Union with the requested COE policies, as it would have taken an

employee with specialized training only one hour to produce. As the

judge found,however, the credited testimony establishes that it would

have taken an employee with specialized training over 80 hours to

produce all of the information requested by the Union in its July 3

information request. Further, the Respondent offered to provide the

COE policies as part of a broader accommodative bargaining proposal,

butthe Union did not respond to this offer. In these circumstances, we

affirm the judge’s dismissal of the allegation that the Respondent vio-

lated Sec. 8(a)(5) by refusing to provide the Union with theinformation

it requested on July 3, 2020. See United Parcel Service of America,

362 NLRB 160, 163 (2015) (finding that the employer did not violate

Sec.8(a)(5) because it reasonably “attempted to reach an accommoda-

tion with the [u]nion” and even “offered to furnish . . . a sample” of the

requested information, but the union “rejected [these proposals] out of

hand” and “continued to insist on receiving all of the requested infor-

mation”).

Contrary to her colleagues,Member Wilcox would find merit to

both allegations. As to the former, she notes that Respondent Los

Robles sent aJanuary 7, 2020 email directly to employees—without

copying the newly certified Union—soliciting employee feedback

about schedules, a mandatory subject of bargaining. Significantly, the

Respondent’s answering brief admits that the email’s reference to pro-

posed schedules “was . . . a ‘jumping off point’ from which to incorpo-

rate therapists’ ‘ideas’ and ‘feedback’ for potential future scheduling

changes.” See, e.g.,NLRB v. Ingredion Inc., 930 F.3d 509, 514-515

(D.C. Cir. 2019) (“Under Board precedent, an employer violates Sec[.]

8(a)(1) and (5) of the Act if it ‘attempt[s] to arm itself for upcoming

negotiations’ by directly ‘soliciting the sentiment of the employees on a

subject to be discussed at the bargaining table.’”)(quoting Harris-

Teeter Super Markets, Inc., 310 NLRB 216, 217 (1993)).She further

notes that although Respondent Los Robles dealt directly with employ-

ees about post-probationary-period shift schedules before theywere

represented by the Union, this fact did not entitle Respondent Los Ro-

to adopt the recommended Order as modified3and set

forth in full below.

bles to deal directly after the Union was certified as their bargaining

representative. See Medo Photo Supply Corp. v. NLRB, 321 U.S. 678,

683-684 (1944). As to the refusal-to -furnish-information allegation,

Member Wilcox would find that Respondent Los Robles unlawfully

refused to provide the Union with at least the first item of information

that the Union had requested regarding the expanded COE system

(“Policies regarding COE”). She disagrees with the judge’s conclusion

that this information was too burdensome to produce. Respondent Los

Robles admits, and her colleagues do not dispute, that it would have

taken an employee with specialized training 1 hour to produce this

requested item of information. In her view, this amount of time cannot

be deemed burdensome, particularly for a large employer with a dedi-

cated labor relations staff like Respondent Los Robles.

3We shall modify the judge’s recommended Order to conform to

the Board’s standard remedial language and in accordance with our

decisions in Paragon Systems, 371 NLRB No. 104 (2022); Cascades

Containerboard Packaging-Niagara, 370 NLRB No. 76 (2021), as

modified in 371 NLRB No. 25 (2021); and Bottom Line Enterprises,

302 NLRB 373 (1991), enfd. 15 F.3d 1087 (9th Cir. 1994). Member

Kaplan acknowledges and applies Paragon Systems as Board prece-

dent, although he expressed disagreement there with the Board’s ap-

proach and would have adhered to the position the Board adopted in

Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020).

In accordance with our decision in Thryv, Inc., 372 NLRB No. 22

(2022), we have also amended the make-whole remedy and modified

the judge’s recommended Order to provide that Respondent Los Robles

shall compensate employees for any other direct or foreseeable pecuni-

ary harms incurred as a result of its unlawful rescission of the Pandemic

Pay Program and withholding of the annual cost-of-living increase for

the Professional Unit. Compensation for these harms shall be calculat-

ed separately from taxable net backpay, with interest at the rate pre-

scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily

as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).

We shall substitute new notices to conform to the Order as modified.

Unlike his colleagues, Member Kaplan would require the Respond-

ents to compensate these employees for other pecuniary harms only

insofar as the losses were directly caused by the unlawful rescission of

the Pandemic Pay Program and withholding of the annual cost-of-living

increase for the Professional Unit, or indirectly caused by the unlawful

action where the causal link between the loss and the unfair labor prac-

tice is sufficiently clear, consistent with his partial dissent in Thryv,

Inc., supra.

In her exceptions, the General Counsel requested that the Board add

affirmative language to the Order requiring that Respondent Riverside

rescind its unlawful N95 and personal protective equipment (“PPE”)

policies. Because Respondent Riverside already rescinded these poli-

cies on February 26, 2021, we find that such affirmative recission lan-

guage is unnecessary, and the Order’s cease-and-desist language is

sufficient. Contrary to her colleagues, Member Wilcox would grant the

General Counsel’s request for the traditional affirmative language and

leave for compliance the determination of whether the policies have

been rescinded. In Member Wilcox’s view, the record does not conclu-

sively establish that Respondent Riverside has rescinded its unlawful

N95 and PPE policies. She notes the Respondent’s witness testified

that, while the hospital still needed to conserve the supply of PPE and

N95 masks, it was able to place the supplies back into the supply rooms

on each of the units “[s]o that was back to sort of our original process

prior to [the]pandemic.” (emphasis added). In addition, the exhibit

referenced by the witness placed limitations on the use of KN95 masks,

among other PPE.

LOS ROBLES REGIONAL MEDICAL CENTER D/B/A LOS ROBLES HOSPITAL &MEDICAL CENTER

3

ORDER

A. The National Labor Relations Board orders that

Respondent Los Robles Regional Medical Center d/b/a

Los Robles Hospital & Medical Center, Thousand Oaks,

California, its officers, agents, successors, and assigns,

shall

1. Cease and desist from

(a) Unilaterally changing the terms and conditions of

employment of its unit employees without first notifying

the Union and giving it an opportunity to bargain.

(b) Making unilateral changes to unit employees’

terms and conditions of employment at a time when the

Respondent and the Union are not at a valid impasse in

bargaining.

(c) Making threatening statements to its employees to

dissuade them from organizing or otherwise exercising

their Section 7 rights.

(d) 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) Before implementing any changes in wages, hours,

or other terms and conditions of employment of unit em-

ployees, notify and, on request, bargain with the Union

as the exclusive collective-bargaining representative of

employees in the following bargaining units:

RN UNIT:

INCLUDED: All full-time, part-time and per diem regis-

tered nurses working in RN job classifications identified in

the Wage Scales applicable to Los Robles Hospital & Med-

ical Center attached to [the] Agreement at the Hospital’s

facility at 215 West Janss Road, Thousand Oaks and 150

Via Merida Road in Westlake Village, or other buildings

operating as “Los Robles Hospital & Medical Center,” in

Thousand Oaks or Westlake, California.

EXCLUDED: Employees in other bargaining units,

non-professional employees, other professional em-

ployees, temporary, agency and registry employees,

Home Health Nurses, the Employee Health

Nurse/Injury Coordinator, the Medicare Billing Audi-

tor, and all other employees, and confidential employ-

ees, guards and supervisors, as defined in the National

Labor Relations Act.

Further, we find merit in the Respondents’ exception requesting re-

moval of the judge’s recommended remedy requiring that the notice be

read aloud to employees, because it is not warranted in these circum-

stances. See Postal Service, 339 NLRB 1162, 1163 (2003).

PROFESSIONAL UNIT:

INCLUDED: All Professional employees, including

Clinical Lab Scientists, Physical Therapists, Occupa-

tional Therapists, Speech Therapists, Pharmacists,

Dieticians, and Social Workers, employed by the

Los Robles Hospital and Medical Center at Main

Campus and East Campus.

EXCLUDED: All other employees, registered nurs-

es, physicians, managers, guards, and supervisors as

defined by the Act, as amended.

(b) On request of the Union, rescind the Pandemic Pay

Program that was unilaterally implemented on March 29,

2020.

(c) Rescind, for Professional Unit employees, the uni-

laterally implemented June 6, 2020 cancellation of the

Pandemic Pay Program and the withholding of the April

2020 annual cost-of-living increase, and continue these

terms and conditions of employment in effect until the

parties reach an agreement or good-faith impasse in bar-

gaining.

(d) Make Professional Unit employees whole for any

loss of earnings and other benefits, and for any other

direct or foreseeable pecuniary harms suffered as a result

of rescinding the Pandemic Pay Program and withhold-

ing the April 2020 annual cost-of-living increase, in the

manner set forth in the remedy section of the judge’s

decision as amended in this decision.

(e) Compensate all affected employees for the adverse

tax consequences, if any, of receiving lump-sum backpay

awards, and file with the Regional Director for Region

31, within 21 days of the date the amount of backpay is

fixed, either by agreement or Board order, a report allo-

cating the backpay awards to the appropriate calendar

year(s) for each affected employee.

(f) File with the Regional Director for Region 31,

within 21 days of the date the amount of backpay is fixed

by agreement or Board order or such additional time as

the Regional Director may allow for good cause shown, a

copy of each backpay recipient’s corresponding W-2

form(s) reflecting the backpay award.

(g) Post at its facility in Thousand Oaks, California,

copies of the attached notice marked “Appendix A”4in

4If the facility involved in these proceedings is open and staffed by

a substantial complement of employees, the notice must be posted

within 14 days after service by the Region. If the facility involved in

these proceedings is closed or not staffed by a substantial complement

of employees due to the Coronavirus Disease 2019 (COVID-19) pan-

demic, the notice must be posted within 14 days after the facility reo-

pens and a substantial complement of employees have returned to

work. If, while closed or not staffed by a substantial complement of

employees due to the pandemic, the Respondent is communicating with

its employees by electronic means, the notice must also be posted by