Virginia Mason Hospital

National Labor Relations Board - Administrative Judge Opinions

Sep 12, 2006

19-CA-030154 (N.L.R.B. Sep. 12, 2006)

JD(SF)-49-06
Seattle, WA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES

VIRGINIA MASON HOSPITAL, (a division of
VIRGINIA MASON HOSPITAL CENTER)

and Case 19-CA-30154

WASHINGTON STATE NURSES ASSOCIATION

Richard Fiol, Esq., Seattle, WA,
for the General Counsel.
Lawrence R. Schwerin, Esq., Seattle, WA,
for the Charging Party.
Mark A. Hutcheson, Esq., and Debra Madsen, Esq., Seattle, WA,
for the Respondent.

DECISION

Statement of the Case

GREGORY Z. MEYERSON, Administrative Law Judge. Pursuant to notice, I heard
this case in Seattle, Washington, on June 13-16, and July 11, 2006. Washington State Nurses
Association (the Charging Party or the Union) filed an original and an amended unfair labor
practice charge in this case on January 10 and March 13, 2006, respectively. Based on that
charge as amended, the Regional Director of Region 19 of the National Labor Relations Board
(the Board) issued a complaint on April 28, 2006. The complaint alleges that Virginia Mason
Hospital, a division of Virginia Mason Hospital Center (the Respondent, the Employer, or the
Hospital) violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The
Respondent filed a timely answer to the complaint denying the commission of the alleged unfair
labor practices and raising a number of affirmative defenses.1

All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs. Based upon the record, my consideration of the briefs filed by
counsel for each party,2 and my observation of the demeanor of the witnesses, I now make the
following findings of fact and conclusions of law.3
1 All pleadings reflect the complaint and answer as those documents were finally amended.
2 Counsel for the General Counsel also filed an “Erratum,” which I have considered.
3 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.

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Findings of Fact

I. Jurisdiction

The complaint alleges, the answer admits, and I find that the Respondent is a State of
Washington corporation, with an office and place of business in Seattle, Washington, where it is
engaged in the business of providing patient and health care services. Further, I find that during
the 12-month period ending prior to the issuance of the complaint, the Respondent, in the
course and conduct of its business operations, had gross sales of goods and services valued in
excess of $250,000, and also purchased and caused to be transferred and delivered to its
facilities within the State of Washington, goods and materials valued in excess of $5,000, which
originated outside Washington.

Accordingly, I conclude that the Respondent is now, and at all times material herein has
been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act, and a healthcare institution within the meaning of Section 2(14) of the Act.

II. Labor Organization

The complaint alleges, the answer admits, and I find that at all times material herein, the
Union has been a labor organization within the meaning of Section 2(5) of the Act.

III. Alleged Unfair Labor Practices

A. The Dispute

The Employer and the Union have had a long history of collective-bargaining. The
genesis of the current dispute is the Employer’s implementation of influenza infection control
measures. These measures included a requirement that all employees, including members of
the bargaining unit represented by the Union, either be immunized against influenza, take an
antiviral prophylaxis medication, or wear a facemask at various locations on the Employer’s
hospital property. It is the contention of the General Counsel and the Union that this influenza
infection control policy is a mandatory subject of bargaining, and was implemented by the
Employer unilaterally, without prior notice to the Union and without affording the Union an
opportunity to bargain over the policy and its effects. Further, the General Counsel and the
Union contend that the Employer has unlawfully failed and refused to timely furnish the Union
with relevant information requested by the Union in regards to the implementation of the policy
in question, and also that the information ultimately furnished was false and misleading. The
complaint alleges that such conduct on the part of the Employer constitutes a failure to bargain
in good faith with the Union in violation of Section (a)(1) and (5) of the Act.

The Employer acknowledges the implementation of influenza infection control measures.
However, it denies any duty to bargain prior to taking the actions complained of in the complaint.
To the extent that it had any duty to bargain with, or to furnish information to, the Union, the
Employer contends that it fully complied with its duty. The Respondent’s answer raises a
number of affirmative defenses. Those defenses include its contention that the implementation
of the policy in question was permitted under the “management rights” and “zipper” clauses of
the applicable collective-bargaining agreement between the parties, by which the Union waived
the right to bargain over this matter. Further, it is the Respondent’s position that the issue in
dispute is essentially one of contract interpretation, which should be deferred to the grievance-
arbitration provisions of the contract for resolution.

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Finally, the Respondent argues that it is required by federal and state law to implement
effective infection control measures. Its decision to implement the particular policy in question is
allegedly not a mandatory subject of bargaining. Counsel for the Employer contends that it is
part of the Hospital’s “standard of care,” which is at the core of the Hospital’s “entrepreneurial
control.” As such, the Union has no legal right to insist on bargaining over the implementation of
the policy.

Regarding those issues in dispute, it is necessary for the undersigned to specifically
indicate why a particular issue is no longer in dispute. The original complaint in paragraph 5
alleged a certain unit of the Respondent’s “employees” represented by the Union to constitute
an appropriate unit for the purposes of collective-bargaining within the meaning of Section 9(b)
of the Act. That unit was described as follows: “All full time, part time and per diem nurses
employed as registered nurses by Respondent, excluding all other supervisory and
administrative/management positions and all other employees.” In its original answer, the
Respondent addressed paragraph 5 and indicated that while the unit was accurately described
in the complaint, the Respondent “does not admit that the covered nurses are statutory
employees within the meaning of Section 2(3) of the Act.”

At the commencement of the hearing, the General Counsel and the Union took the
position that the registered nurses in the collective-bargaining unit represented by the Union
were statutory employees within the meaning of Section 2(3). However, the Respondent took
the position that rather than statutory employees, the registered nurses in the unit were
supervisors and/or managerial employees. Subsequently, in his case in chief, counsel for the
Respondent offered a substantial amount of testimonial and documentary evidence with the
intention of establishing the supervisory and/or managerial status of the registered nurses in the
unit. Counsel for the General Counsel and counsel for the Union challenged that evidence
through cross-examination. Further, both the Respondent in its continuing case in chief and the
General Counsel and the Union in their anticipated cases in rebuttal apparently intended to offer
significant addition evidence on the issue of the “employee” status of the registered nurses. At
this point there was a recess in the hearing.

During the hiatus in the proceedings, the parties submitted to the undersigned a
document entitled, “Joint Motion to Allow the Filing of an Amended Complaint and Amended
Answer, and to Close the Hearing.” (Jt. Exh. 2.) Further, the General Counsel submitted an
Amended Complaint (G.C. Exh. 26.) and the Respondent submitting an Amended Answer (Res.
Exh. 66). The Amended Complaint was identical to the original complaint with the exception
that the term “employees,” where ever it appeared in the original, was replaced with the term
“register nurses” in the Amended Complaint. Similarly, the Amended Answer was identical to
the original answer with the exception that the Amended Answer now admitted paragraph 5 of
the Amended Complaint in its entirety, including the allegation that the unit comprised of
“registered nurses” was an appropriate unit for the purposes of collective-bargaining within the
meaning of Section 9(b) of the Act.

At the time the hearing resumed, the undersigned requested on the record statements
from all counsels as to their respective positions regarding the issue of whether the registered
nurses in the bargaining unit were statutory employees. All three parties declined to take a
position on the “employee” status of the registered nurses. Further, all parties specifically
requested that I not address this issue in my decision, contending that it was unnecessarily for
me to do so in order to resolve the underlying dispute. In support of this position, counsel for
the General Counsel cited the case of Gratiot Community Hospital, 312 NLRB 1075, fn. 2
(1993). In that case, where there was an issue as to whether some of the nurses in the

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recognized bargaining unit were supervisors, the Board held that even if all the nurses were
statutory supervisors, “the unilateral changes regarding them would nonetheless be unlawful.”
The Board noted that the parties to the collective-bargaining agreement had “voluntarily agreed
to include supervisors in a unit,” who were in fact covered by a contract at the time of the
changes. Under those circumstances, the Board ordered the application of the terms of the
collective-bargaining agreement to those supervisors. It distinguished this situation involving
“voluntary” recognition from others where the Board acknowledged that an employer “could not
be compelled to recognize” a union as the representative of a unit containing supervisors. The
Board held that “the changes regarding the nursing supervisors [were] unlawful.” (Cited cases
omitted).

In view of the unanimous position of the parties that I specifically not address the
question of whether the registered nurses in the recognized bargaining unit4 are statutory
employees, and because I find the Gratiot case directly on point with the issue before me, I will
make no finding regarding this issue. I agree with the parties that in light of the Board’s holding
in Gratiot it is unnecessary for me to address the issue of the status of the registered nurses in
order for me to resolve the underlying dispute. Further, I will grant the motion of counsel for the
General Counsel and counsel for the Union, unopposed by counsel for the Respondent, to
disregard any evidence, testimonial or documentary, bearing on the question of whether the
registered nurses are statutory employees. I will now proceed to resolve the underlying dispute.

B. The Background

The Respondent operates an acute care hospital in Seattle, Washington. The Union
and the Respondent have a long standing bargaining relationship with a current collective-
bargaining agreement effective from November 16, 2004, through November 15, 2007. (G.C.
Exh. 22.) In September of 2004, the Respondent announced its intention to amend its “Fitness
for Duty” policy to add a requirement that its entire workforce, including the registered nurses
represented by the Union, be immunized against influenza,5 unless accommodated because of
disability or religious belief. Thereafter, the Union filed a grievance under the terms of the then
existing collective-bargaining agreement alleging a failure to bargain and unilateral change by
the Respondent in its action requiring the immunization of, among other employees, the
registered nurses. On August 8, 2005, an arbitrator issued an award on the grievance in favor
of the Union, finding that the Respondent violated the terms of the contract by unilaterally
implementing a mandatory flu immunization policy. The Respondent was “directed to cease
and desist its intended implementation of the flu immunization policy and remove such condition
of employment from its Fitness for Duty policy.” (G.C. Exh. 23.) The arbitrator’s decision is
currently on appeal before the Ninth Circuit Court of Appeals.

In compliance with the arbitrator’s decision, the Respondent did not require the
registered nurses represented by the Union to meet the influenza immunization requirements of
the fitness for duty policy. However, the policy remains in effect for all of its other employees,
including doctors.

4 There is no dispute that the Employer voluntarily “recognized” the Union as the
representative of the registered nurses in the unit, which recognition has been embodied in
successive collective-bargaining agreements. See Amended Complaint paragraph 5(b) and
Amended Answer paragraph 5(a)-(c).
5 The terms influenza and flu are used interchangeably throughout this decision.

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On October 25, 2005, representatives of the Hospital for the first time raised with
representatives of the Union at a “conference committee6” meeting the Hospital’s consideration
of a plan to require non-immunized registered nurses (RNs) to either take a drug (flu) treatment
therapy or wear a protective facemask. At this meeting, as well as at a second meeting held on
November 30, 2005, the committee members discussed the Respondent’s desire to find some
method of protecting its hospital patients, employees, and visitors from contracting the flu. It
was at one of those two meetings where the Respondent’s representatives produced a form
entitled “Declination of Annual Influenza Immunization 2005-2006 Flu Season.” (G.C. Ex. 6.)

This declination form indicated that each RN was “required” to be protected from the flu,
and that any RN who declined to be immunized was required to obtain protection by one of two
alternate methods, either by agreeing to take “Amantidine-a drug therapy treatment,” or by
agreeing “to wear a protective mask…at all times while at work, including patient and public
areas of the hospital.” There was apparently no dispute between the parties that the most
effective method of protection from influenza was through immunization.7 The Union indicated
to the Respondent on numerous occasions its interest in a process of encouraging the RNs to
agree “voluntarily” to immunization. However, the Union repeatedly indicated to the
Respondent its opposition to any form of “involuntary,” mandatory means of protection, whether
that was through immunization, drug therapy treatment, or the wearing of a facemask. It is also
undisputed that neither drug therapy treatment8 nor the wearing of a facemask is as effective in
preventing the contracting and spread of the flu as is immunization.

By letter dated December 5, 2005, Barbara Frye, the Union’s director of labor relations,
advised Charleen Tachibana, the Respondent’s senior vice president and chief nursing officer,
of the Union’s strong objections to the Hospital’s use of the declination form and to the demand
that “RNs sign the form as a condition of continued employment.” Further, the letter objected to
the “new working conditions you seek to unilaterally impose in your plan,” which allegedly
“amounts to direct bargaining.” Frye went on to request certain information “necessary to
intelligently asses your plan,” which information was requested be provided “within 3 business
days.” Among other items requested was the following: “4. All documents recording or
reflecting objections, complaints or comments regarding the plans, forms or requirements
referenced in response to items 2 and 3 above.9” (G.C. Exh. 7.)

According to Tachibana, during the month of December 2005, the Hospital’s influenza
vaccine campaign was in “high gear,” meaning efforts were underway to immunize as many
employees as possible. However, for those employees unwilling to be vaccinated, the
Respondent began to insist that alternate methods of protection be utilized. It was at this point
that the Respondent posted signs “requesting” that “all persons” who had not been vaccinated
6 It is uncontested that this conference committee is a joint union/management committee
that meets monthly, and its function is limited to an advisory rather than a decision making
capacity. The conference committee does not engage in collective-bargaining, and its union
members do not have the authority to negotiate on behalf of the RNs, at least not in that forum.
7 Immunization can be achieved through either injection or spray inhalation of a vaccine. In
either form, the immunization strengthens the body’s immune system by the production of
antibodies, which prevents the influenza virus from invading the body and causing an infection.
(See the testimony of Charleen Tachibana.)
8 Such a drug therapy treatment involves taking an antiviral medication orally on a regular
regimen. It acts to treat or prevent the influenza infection once the influenza virus enters the
body. (Testimony of Charleen Tachibana.)
9 Items 2 and 3 refer to the Respondent’s “immunization plans.”

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for the flu “wear a mask at all times while in patient care areas.” (Res. Exh. 9.) These notices
were posted at entrances to the facility. Tachibana testified that the message was targeted
toward staff, visitors, and the employees of contractors. The Hospital employs approximately
5,000 employees, of whom 599 are registered nurses in the bargaining unit. Forty kiosks to
dispense facemasks, hand cleanser, and information about flu prevention were thereafter
located around the facility where non-immunized persons could access them. Tachibana
estimated that of the hospital staff, approximately 98.5% were immunized during the 2005/2006
flu season. The remaining non-immunized staff was comprised almost entirely of the registered
nurses in the bargaining unit. Of course, they had the option of utilizing one of the alternative
means of protection, either wearing a facemask or taking an antiviral medication.

By letter dated December 9, 2005, Tachibana responded to Barbara Frye’s earlier letter,
saying essentially that the Hospital was not going to use the declination form “as a condition of
continued employment.” However, the Respondent wanted to ensure that it “exhausted every
opportunity for staff to … make their decision regarding immunization.” Further, Tachibana
informed Frye that “[i]f the Union still seek[s] additional information,” she should contact the
director of labor relations. (G.C. Exh. 8.) On December 19, 2005, Frye sent a letter to the
Respondent’s director of labor relations, noting that Tachibana had informed her that the
Hospital did not intend to use the declination form and “will not be requiring nurses to comply
with the terms therein as a condition of employment.” Still, she continued that “even given this
assurance, I reiterate our request for the information set forth in my previous letter….” (G.C.
Exh. 9.)

On December 29, 2005, John Walburn, Respondent’s director of labor relations, sent
Frye a letter in which he confirmed as “accurate” Tachibana’s earlier letter. Walburn
acknowledged the accuracy of Frye’s understanding that the Hospital would not be distributing
the declination form and “such will not be required [sic] inpatient nurses to comply with the terms
therein as a condition of employment.” Further, he indicated that regarding the Union’s request
for information of December 5, 2005, “due to holidays and schedules, we will have to get back
to you after the first of the year.” (G.C Exh. 10.) However, on that same date, December 29,
Rose Methven, a nurse manager,10 sent an email message entitled “flu vacc. update” to a
number of registered nurses in several departments. In that message, Methven states that
“[s]tarting Sunday 1/1 all non-vaccinated staff working in patient care areas will wear masks (do
not use the same mask all day-change periodically).” She goes on to indicate that all visitors,
including the family members of patients who are not vaccinated, will be required to wear
facemasks in patient areas. Methven concludes by indicating that this policy “will continue
during the flu season through March.” (G.C. Exh. 11.)

It is clear from the Union’s subsequent action that it considered Methven’s email
message to be in contradiction with the recent written statements from Walburn and Tachibana.
Having learned from its members of Methven’s email, union attorney David Campbell sent a
letter dated December 30, 2005 to the Respondent’s Chief Executive Officer, as well as to
Tachibana, and to Steven Stahl, the Respondent’s new director of labor relations. Campbell
references and attaches the email message from Methven. He characterizes the “directive” as
an “unlawful change in working conditions,” and as “inconsistent with the assurances
communicated to the [Union] twice in the last two weeks.” He outlines the recent history of the
declination form, including the correspondence between Frye, Tachibana, and Walburn. Finally,
Campbell requests the immediate retraction of Methven’s email and that it be communicated to
10 The Respondent’s answer admits that Methven is a supervisor and agent within the
meaning of the Act.

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all registered nurses. While not specifically making another request for information, he mentions
that a request for information regarding the “proposed changes in working conditions” was
previously made. (G.C. Exh. 5.) As of the date of Campbell’s letter, none of the requested
information had been forthcoming from the Respondent.

Counsel for the Respondent, Debra Madsen, by letter dated January 3, 2006, responded
to Campbell. Madsen “acknowledge[d] the confusion that ha[d] been created through our
correspondence with Ms. Frye and the referenced email from one of our nurse managers.”
However, she defended the Hospital’s “infection control policy, such as masking,” as a
“standard of practice,” which the Respondent had a right to implement under the “management
rights clause” found in Article 18 of the collective-bargaining agreement. According to Madsen,
any issues of “non-compliance” with the policy would be handled through the standard
processes, which might include “progressive discipline.” Further, she indicated the documents
previously requested by Ms. Frye would be provided within the next 10 business days. (G.C.
Exh. 12.)

As of January 1, 2006, the Respondent required that its registered nurses who had not
been immunized for the flu either wear a facemask or take antiviral medication. Susan Dunn is
a registered nurse (RN) who has been employed by the Respondent for 22 years. She works a
12 hour shift in the Respondent’s critical care department. Dunn testified that after January 1,
she was required to wear the mask at all times except for when she was in the restroom, break
room or cafeteria. As such, she was required to wear the mask for approximately 11 of the 12
hours in her work shift. According to Dunn, under the previous policy nurses were only required
to wear a facemask when in close contact (within 3 feet) of a patient who had symptoms of a
respiratory infection.11 The longest continuous period of time during which she was required to
wear a mask under the previous policy was one hour, with a total not to exceed three to four
hours during the entire 12 hour shift. Of course, the Union contends that this change in the
policy regarding the wearing of facemasks was dramatic, and had a very significant impact on
the registered nurses. The record reflects that a number of nurses in the bargaining unit
considered the wearing of the mask for long periods of time physically uncomfortable, and found
it demeaning and stigmatizing.

On January 16, 2006, the Respondent, through Madsen, provided certain information
that it believed was responsive to the items requested by the Union. (G.C. Exh. 13.) In
determining whether the Respondent was complying in good faith with the Union’s request for
information, it is especially significant to follow the flow of information in response to the Union’s
request for those documents in item number 4, as set forth in the letter from Barbara Frye dated
December 5, 2005. Item number 4 requested the following: “All documents recording or
reflecting objections, complaints or comments regarding the plans, forms or requirements
referenced in response to items 2 and 3 above.” What the Union was seeking by this item was
the reaction of its bargaining unit members to the masking policy as reflected in correspondence
with hospital management through such means as email messages. In her response of
January 16, Ms. Madsen furnished no information under item 4, concluding that as the
declination form was never used, there were no comments about the form in the possession of
the Respondent. Further, Madsen stated that to the extent that there were objections,
11 It appears that this was the procedure recommended by the Department of Health and
Human Services, Centers for Disease Control and Prevention for the use of masks to control
influenza transmission. (G.C. Exh. 4.)

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complaints or comments to the masking and antiviral medications, they “have taken place within
the religious and medical accommodation process.” By this statement she was apparently
suggesting that any such responses would be confidential and, therefore, not producible.

Attorney Campbell responded by letter dated February 8, 2006, indicating the Union’s
position that the Respondent had failed to furnish information in a timely manner, and in
particular had totally failed to produce any documents in response to item number 4 in the
original request for information. Campbell pointed out that the Union’s request was not limited
to the declination form alone, but, rather, to any “plans, forms or requirements” as they involved
flu prevention alternatives to immunization. (G.C. Exh. 14.) By letter of February 9, 2006,
Debra Madsen informed Campbell that she was unable to comply with the request for
“additional information” for approximately one week. However, she now understood that by item
number 4 in its request, the Union was seeking materials such as employee email postings to
the Hospital’s “internal VM Staff Forum,” where employees commented about the flu prevention
policy, which emails the Respondent would attempt to provide. (G.C. Exh. 15.)

By letter dated February 16, 2006, Debra Madsen submitted to the Union, among other
information, employee email postings to the VM Staff Forum, an intranet all staff communication
forum, concerning any objections, complaints, or comments pertaining to the Respondent’s
influenza prevention program. However, as Madsen pointed out in her cover letter, “These
postings have been redacted so that the individual staff member’s name and/or any personally
identifiable information is not disclosed.” (G.C. Exh. 16.)

In yet further correspondence on this subject, David Campbell sent the Respondent a
letter dated March 7, 2006, in which he criticized the Hospital’s response to the Union’s request
for information, specifically the submission of redacted versions of staff postings on the intranet.
Campbell pointed out that as the postings had been available to hospital employees with access
to the intranet, there did not appear to be a confidentiality basis for refusing to furnish the Union
with identifying information. (G. C. Exh. 17.) There then followed some additional
correspondence, the most significant of which is a letter from Debra Madsen dated March 15,
2006, in which the Respondent took the position that the “identities” of those employees who
posted messages about the flu prevention policy on the Respondent’s intranet were “not
relevant” to the issues surrounding the policy. (G.C. Exh. 19.)

Finally, the parties met face to face on April 25, 2006, in an effort to resolve the
continuing dispute as to whether the Respondent had furnished all relevant information
requested by the Union. According to the testimony of Barbara Frye, it was at that meeting that
the Respondent furnished the Union with the unredacted versions of the emails from the staff
forum where employees, including registered nurses, now identified, had made comments,
complaints, or objections about the Respondent’s flu prevention program, including the masking
and antiviral medication alternatives. The parties still did not agree that all requested
information had been provided. However, in regards to that information under item number 4 in
the original request letter of December, 5, 2005, it is at least clear that the unredacted emails
were not furnished to the Union until April 25, 2006, some four and a half months later.

C. Legal Analysis and Conclusions

1. Institution of the Flu Prevention Policy

Every year approximately 36, 000 people in the United States die of influenza. It is
transmitted from person to person through “droplets” containing the virus. Unfortunately,
hospitals, where sick people are congregated, are especially susceptible to the spread of

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influenza. That is also the situation for elderly people, as both the sick and the elderly tend to
have compromised immune systems. The Respondent’s hospital facility has a patient
population that averages 76 years of age. In fact, the Respondent’s patient population is much
older than many acute care general hospitals because it caters to an elderly population and
does not service pediatrics or obstetrics. (See the testimony of Charleen Tachibana.)

Influenza is a preventable disease. In an effort to prevent the spread of all diseases,
including influenza, healthcare facilities are required to have infection control policies and
practices in place.12 These standards are intended to be proactive and through education and
infection control seek to mitigate the spread of disease. (Charleen Tachibana.)

The Respondent publishes an Infection Control Manual. (Res. Exh. 3.) As set forth in
that manual (p. 3.5), “measures to prevent infectious disease transmission or ameliorate
outbreaks may require the temporary or permanent use of additional immunizations, personal
protective equipment, and….” Chief Nursing Officer Tachibana testified that personal protective
equipment would include such items as a facemask, latex gloves, and a gown. According to
Tachibana, under the terms of the Hospital’s infection control policy, there are times when
registered nurses are required to wear gloves, or facemasks, or gowns when providing patient
care. She characterized the requirement to wear protective equipment, including facemasks, as
no different than the requirement that nurses wash their hands on a regular basis. In
Tachibana’s 30 years of employment with the Hospital, she is unaware of any occasion where
the Hospital bargained with the Union over any aspect of its infection control policy.

It is undisputed that influenza is preventable. Immunization, either through inoculation or
inhalation of the vaccine, is the most effective means of preventing the spread of the flu. It is
also generally accepted that while less effective, the wearing of a facemask or a regimen of
antiviral medication is at least some measure of protection against the flu.13

Complaint paragraph 8(a) alleges that on January 1, 2006, the Respondent
“implemented an influenza immunization policy that requires Unit employees to wear a mask
and/or take an anti-viral prophylaxis.” As counsel for the Respondent repeatedly pointed out in
his answer to the complaint, at trial, and in his post-trial brief, immunization only comes through
inoculation or inhalation of the vaccine. Wearing a facemask or taking antiviral medication does
12 Federal regulations require that hospitals “participating in Medicare must meet certain
specified requirements.” (42 CFR Section 482.1(a)(1)(i)). These requirements include
“meeting standards for licensing established by the agency of the State or locality responsible
for licensing hospitals” (42 CFR Section 482.11 (b)(2)) and having an “active program for the
prevention, control, and investigation of infections and communicable diseases” (42 CFR
Section 482. 42). Further, I will take administrative notice that the State of Washington requires
that “Hospitals must develop and implement an infection control program….” WAC 246-320-
265 (Department of Health).
13 The Department of Health and Human Services, Centers for Disease Control and
Prevention (CDC) has issued interim guidelines for the use of masks to control influenza
transmission. According to those guidelines, “A combination of infection control strategies is
recommended to decrease transmission of influenza in health-care settings. These include …
having health-care personnel wear masks for close patient contact (i.e., within 3 feet) and
gowns and gloves if contact with respiratory secretions is likely.” The CDC makes this
recommendation despite acknowledging that “no studies have definitively shown that mask
use… prevents influenza transmission.” (G.C. Exh. 4.)

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not constitute immunization. That “technicality” aside, what the Respondent did was to institute
a policy requiring those registered nurses who declined to receive a voluntary inoculation or
inhalation of the influenza vaccine to either wear a facemask when in patient care areas of the
hospital or to take the antiviral medication. Non-immunized visitors and contractors were
encouraged to also use a facemask while in patient care areas. For those registered nurses
who declined to either be immunized or take the antiviral medication, their option was limited to
using a facemask, or face possible disciplinary action.

There is no question that the Hospital preferred for its registered nurses to be immunized
and strongly encouraged them to do so. However, if they declined to do so after January 1,
2006, they were required to take antiviral medication or wear a facemask in patient care areas.
Further, the testimony of at least one RN employed in the surgical care unit was undisputed that
in a 12 hour shift it might be necessary to wear a mask for up to 11 out of 12 hours in order to
be in compliance with the Hospital’s policy. There was additional evidence that some nurses
considered the wearing of the masks to be punitive, humiliating, stigmatizing, and physically
demanding.

Paragraphs 8(b)and (c) of the complaint allege that the Respondent instituted its flu
prevention policy without bargaining with the Union, which bargaining the General Counsel
contends was required because the wearing of a facemask and the taking of antiviral
medication is allegedly a mandatory subject of bargaining. Among its many defenses, the
Respondent takes the position that the institution of the flu prevention policy was not a
mandatory subject of bargaining. I agree with the Respondent, essential for the reasons
expressed by counsel in his post-hearing brief.

Infection control policies and the standard of care patients receive at the Respondent’s
hospital facility are at the “core of entrepreneurial control” by the Respondent. What purpose
does any acute care hospital, or for that matter any healthcare facility, serve? Of course, the
obvious answer is to provide medical care in order to cure the sick and injured, ameliorate pain,
and generally provide for the medical needs of the community. In conjunction with providing
medical care, any healthcare facility must naturally do its utmost to prevent the spread of
disease through what is acknowledged to be a susceptible population. For the reasons
explained earlier, the Respondent’s elderly patient population, with their compromised immune
systems, is at significant risk of contracting the flu while housed at the Respondent’s facility. In
order to ameliorate such a risk, the Respondent instituted a flu prevention policy which, for
those registered nurses who chose the option, required the wearing of facemasks or the taking
of antiviral medication. I am of the view that such a policy is central to the entrepreneurial
purposes for which the Hospital exists.

It is, of course, well established that an employer must bargain with its employees’
collective-bargaining representative over mandatory subjects of bargaining. See NLRB v. Katz,
369 U.S. 736, 743 (1962). However, not all subjects are mandatory subjects of bargaining even
though they may impact “working conditions.” In First National Maintenance Corp. NLRB, 452
U.S. 666 (1981), the Supreme Court recognized that sometimes there must be an analysis of
the respective weight of management’s right to operate its business verses the benefit to the
collective bargaining process. According to the Court,

Management must be free from the constraints of the bargaining process to the extent
essential for the running of a profitable business…. [I]n view of an employer’s need for
unencumbered decisionmaking, bargaining over management decisions that have a

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substantial impact on the continued availability of employment should be required only if the
benefit, for labor-management relations and the collective bargaining process, outweighs the
burden placed on the conduct of the business.

452 U.S. at 678.

It is worth noting that in cases where the Federal Courts and the Board have used a
“balancing test,” weighing an employer’s duty to bargain against management’s right to make
fundamental business decisions, the language used in the various decisions appears to have
originated in the concurring opinion of Justice Steward in Firebird Paper Products v. NLRB, 379
U.S. 203, 223 (1964). In Justice Steward’s opinion, an employer had no duty to bargain
collectively over those managerial decisions, “which lie at the core of entrepreneurial control.”
Those decisions which were “fundamental to the basic direction of a corporate enterprise or
which impinge only indirectly upon employment security should be excluded” from the area of
collective-bargaining.

Further, the courts and the Board have repeatedly recognized that hospitals are unique
places of employment. In Beth Israel Hospital v. NLRB, 437 U.S. 483, 494, (91978), the
Supreme Court cited with approval the Board case of St. John’s Hospital & School of Nursing,
Inc., 222 NLRB 1150 (1976) where the Board concluded that the special characteristics of
hospitals justify a rule (concerning solicitation and distribution) different from that which the
Board generally applies to other employers, and the Board noted that “the primary function of a
hospital is patient care….” See Sacred Heart Medical Center, 347 NLRB No. 48, fn. 6 (2006).
Also, language used by Chief Justice Burger in his concurring opinion in NLRB V. Baptist
Hospital, Inc., 442 U.S. 773, 791-793 (1979) is particularly useful in framing this issue in the
case before me. As Justice Burger said, “I would think that no ‘evidence’ is needed to establish
the proposition that the primary mission of every hospital is care and concern for patients and
that anything which tends to interfere with that objective cannot be tolerated…. The hospital’s
only purpose is the care and treatment of patients…. I would not elevate the interests of unions
or employees, whose highest duty is to patients, to a higher plane than that of the patients.”

The seminal case from the Board on the issue of an employer’s right to direct the central
nature of its business is Peerless Publication, Inc., 283 NLRB 334 (1987). Counsels from all
three parties cite this case in their post-hearing briefs. Of course, their views differ greatly as to
the applicability of the case to the facts at hand. In Peerless, the Board noted a presumption
that decisions affecting the terms and conditions of employment are mandatory subjects of
bargaining. However, the Board held that an employer can overcome this presumption by
establishing that its action involves the “core purpose” of its business and is “narrowly tailored”
to achieve a legitimate essential interest. Specifically, the Board said:

In order to overcome this presumption, therefore, it is clear initially that the subject matter
sought to be addressed by the employer must go to the “protection of the core purposes of
the enterprise.” Where that is the case, the rule must on its face be (1) narrowly tailored in
terms of substance, to meet with particularity only the employer’s legitimate and necessary
objectives, without being overly broad, vague, or ambiguous; and (2) appropriately limited in
its applicability to affected employees to accomplish the necessarily limited objectives.

283 NLRB at 335.

I am of the view that the Respondent’s establishment of a flu prevention policy,
specifically the options of wearing a facemask or the taking of antiviral medication as an
alternative to immunization by vaccine, goes directly to the “core purpose” of the Respondent as

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an acute care hospital. At the risk of stating the obvious, I would note that hospitals exist to
provide medical care with the intention of curing disease or injury, making patients feel better,
alleviating pain, or performing a requested medical service. In providing this medical care, the
last consequence that a hospital wants to have happen is for patients to become ill as a result of
their stay at the hospital. Unfortunately, occasionally this does happens, and in the case of
influenza it can happen with disastrous consequences. As was noted earlier, some 36,000
Americans die every year of influenza and its complications. The Hospital’s flu prevention policy
is designed to protect its patients. What can be more central to the Respondent’s “core
purpose” than that? I can imagine little if anything that is more central to the Hospital’s
“entrepreneurial purpose” than its attempt to keep its patients free of the influenza virus.

Clearly, this is not some frivolous, capricious or unimportant matter. As was indicated
earlier, elderly, infirm patients are especially susceptible to the influenza virus. This population
comprises a large majority of the Respondent’s patients. Ensuring a safe and sanitary
environment is at the very core or heart of the Respondent’s business as a health care provider.
As such, I conclude that the Respondent’s establishment of a flu prevention policy, including the
wearing of facemasks or the taking of antiviral medication, as an alternative to immunization by
vaccine, meets the first of the Board’s tests under Peerless.

There is no question that for those registered nurses who take the “option” of wearing a
facemask, it can be rather intrusive, and certainly affects their working conditions. As was
mentioned earlier, the requirement that a mask be worn continuously in patient care areas may
result in the RNs who choose that “option” of having to wear the mask for most of her/his
working hours. However, the essential point to remember is that the wearing of a facemask is in
fact an “option.” Clearly, the Respondent would prefer its employees to be immunized by
injection or inhalation of the vaccine, as that is scientifically known to be the best method of
preventing infection by the flu virus. For those registered nurses who harbor objections to
taking the vaccine, religious, health or otherwise, the Respondent provides the “option” of
wearing a facemask while in patient care areas or of taking an antiviral medication. The other
methods of flu prevention are much less overtly intrusive than the wearing of a facemask.
Therefore, it seems to me that a nurse who selects the “option” of wearing a facemask has
brought that intrusion upon her/him self and, thereafter, cannot legitimately be heard to
complain about the extent of the intrusion.

The Respondent’s flu prevention policy is “narrowly tailored” to meet its legitimate
objective of attempting to prevent the spread of influenza in a susceptible hospital population. It
is not overly broad, vague, or ambiguous. The policy is plainly understood. It requires
employees to take measures to prevent the spread of the flu in the hospital facility. For those
registered nurses who decline to be immunized by injection or inhalation of vaccine, it requires
that they either take antiviral medication or wear a facemask. There has been no suggestion,
contention, or evidence offered that RNs who choose the option of wearing a facemask will be
required to wear the mask once the flu season ends.

Further, I see no merit in counsel for the General Counsel’s argument in his post-hearing
brief that the Respondent’s policy is not narrowly tailored because it exceeds the CDC
guidelines, which only suggest that health care providers wear a mask when they are within
three feet of a symptomatic patient. (G.C. Exh. 4.) It is the Respondent’s province to decide
what measures are necessary to protect patients in its hospital facility. There is no reason why
the Respondent cannot exceed the CDC guidelines on masking, especially where the

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Respondent offers its nurses a number of other options for preventing the spread of the flu. The
Respondent’s influenza prevention policy, which offers multiple options to its RNs, is reasonable
and narrowly tailored to achieve a legitimate and necessary objective. It is not overly broad,
vague or ambiguous. As such, it satisfies another of the Board’s tests under Peerless.

The Respondent’s policy in question is limited in its applicability to the affected
registered nurses who decline other flu prevention options. However, it should be noted that the
wearing of a facemask for flu prevention is not the only item that RNs may be required by the
Respondent to wear. As testified to by Charleen Tachibana, the nurses are required at certain
times to wear gowns and latex gloves. Further, historically nurses in the critical care unit and in
surgical units have been required to wear facemasks at specific times, such as when assisting
with surgery or when caring for patients with certain types of injuries or illnesses. According to
Tachibana, at no time did the Union ever request bargaining over the wearing of gowns, gloves,
or historically facemasks by critical care/surgical unit nurses. Tachibana testified that all of
these items, including the wearing of facemasks as an aid in flu prevention, are part of the
“standard of care,” which the Hospital expects of its registered nurses. She equates these items
with the expectation under the standard of care that nurses will wash their hands numerous
times a day at appropriate occasions. Certainly, it is reasonable for the Hospital to expect its
registered nurses to follow a certain standard of care in conducting their professional patient
care responsibilities.

I agree with the Respondent’s contention that the application of the facemask flu
prevention option is appropriately limited to those registered nurses who decline any of the three
other options (immunization by injection or inhalation of vaccine, or antiviral medication). It is
limited in its application to the extent possible, while still serving as a viable option with some
prophylactic value in influenza prevention. As such, it meets the final test required by the Board
under Peerless.

In substance, I conclude that the Respondent’s influenza control policy, and specifically
those options consisting of the taking of antiviral medication or the wearing of a facemask when
in patient care areas, is not a mandatory subject of bargaining. The policy is part of the
essential nature of the Hospital’s business, which policy is narrowly tailored to achieve a
legitimate interest. Peerless, supra. Accordingly, assuming for the sake of argument that the
Respondent failed and refused to bargain with the Union over the establishment of a policy
regarding the wearing or facemasks when in patient care areas or the taking of antiviral
medication, I find that such conduct did not constitute a violation of the Act, as the Respondent
was under no legal obligation to bargain over such subjects.14

In his post-hearing brief, counsel for the General Counsel contends that even assuming,
arguendo, that the masking/antiviral medication policy is not a mandatory subject for bargaining
as far as the decision to implement it is concerned, the “effects” of that decision would still
constitute a mandatory subject over which the Respondent is required to bargain. This is an
interesting argument. However, I believe that for several reasons it is without merit. To begin
with, the issue of “effects” bargaining was really never substantively raised in the complaint nor
14 The Respondent raises a number of affirmative defenses to the failure to bargain
allegation in the complaint. One of those defenses is the Respondent's contention that it did, in
fact, bargain with the Union about the facemask and antiviral medication options in the flu
prevention policy. However, in light of my finding that these matters did not constitute
mandatory subjects of bargaining, and, thus, there was no duty to bargain with the Union, I find
it unnecessary to rule on the other defenses raised by the Respondent.

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litigated at the hearing. It is accurate that in paragraph 8(c) of the complaint there is standard
“boilerplate” language alleging the Respondent’s action to constitute a violation of the Act “with
respect to this conduct and the effects of this conduct.” (emphasis added.) However, certainly
such a cursory, passing reference cannot be considered adequate to alert the Respondent to an
alleged lack of effects bargaining. I believe that such is reinforced by the total failure of counsel
for the General Counsel or counsel for the Union to raise this contention in any way or at any
time during the trial. The issue was simply not litigated before me. Frankly, I suspect that this
“eleventh hour” claim by the General Counsel is likely the result of the realization that the
underlying complaint allegation of a failure to bargain over the decision to implement the
masking/antiviral medication policy may not constitute a violation of the Act, as not a mandatory
subject of bargaining.

In any event, I am of the view that were I to now find that the Respondent violated the
Act by not engaging in mandatory “effects” bargaining, there would be a clear denial of the
Respondent’s due process rights. As I said, this issue was neither alleged substantively in the
complaint nor litigated before me. Therefore, I believe that it would be totally inappropriate for
me to address the issue at this late date, and I decline to do so.

Even assuming, for arguments sake, that it is appropriate to address the issue of
“effects” bargaining, I conclude that this is also not a mandatory subject of bargaining. It can not
be separated from the issue of the implementation of the masking/antiviral medication policy.
As I have concluded, the requirement that the RNs wear masks when in patient care areas or
take antiviral medication, assuming they declined the other options available to them in the
Respondent’s flu prevention policy, is essential to the core purposes for which the Respondent
operates. It cannot be divorced from the logical result of a failure to comply with the
Respondent’s policy, which, presumably, is some adverse consequence. However, it must be
noted that there was no probative evidence offered at the trial as to specifically what adverse
consequence that would be.15 In fact, Charleen Tachibana credibly testified that no registered
nurse represented by the Union has been discharged or disciplined in any way for a failure to
wear a facemask in accordance with the Respondent’s influenza control policy. Further, she
testified that no RN in the bargaining unit has been threatened with termination by the
Respondent for a failure to abide by the masking policy. Accordingly, I conclude that even
assuming a failure by the Respondent to bargain over the “effects” of its policy, such conduct
would not constitute a violation of the Act, as in such circumstances this is not a mandatory
subject of bargaining.

In summary, I conclude that the General Counsel has failed to meet its evidentiary
burden and establish by a preponderance of the credible evidence that the Respondent’s
implementation of an influenza prevention policy, which included the options of wearing a
facemask or taking antiviral medication, and the effects of such conduct constituted a violation
of Section 8(a)(5) and (1) of the Act. Accordingly, I shall recommend dismissal of complaint
paragraph 8 and all its subparagraphs.

15 In a letter to the Union dated January 3, 2006, the Respondent’s attorney, Debra Madsen,
indicates that any “non-compliance” with the influenza prevention policy “will be handled through
our standard processes, which may include progressive discipline.” (G.C. Exh. 12.) It would
seem, therefore, that the Respondent is acknowledging that should any member of the
bargaining unit ultimately be disciplined for non-compliance with the policy, the Union could file
a grievance over that discipline under the terms of the existing collective-bargaining agreement.

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2. False and Misleading Information

Paragraph 7 of the complaint alleges that on or about December 29, 2005, the
Respondent responded to the Union’s request to bargain over an “influenza immunization
policy” by providing false and misleading information about its intention to implement such
policy.

As was set forth in detail earlier, the Respondent first raised the issue of requiring its
non-immunized register nurses to either wear a facemask or take antiviral medication as two
options in its influenza prevention program while at the conference committee meetings with the
Union held on October 25 and November 30, 2005. It was also at one of those meetings where
the Respondent first produced the form entitled “Declination of Annual Influenza Immunization
2005-2006 Flu Season.” Thereafter, by letter dated December 5, 2005, from Barbara Frye, the
Union objected to the Hospital’s use of the declination form, to the demand that the “RNs sign
the form as a condition of continued employment,” and to the “new working conditions” the
Respondent sought to “unilaterally impose” in its “plan,” which allegedly “amount[ed] to direct
bargaining.” Further, Frye went on to request certain information “necessary to intelligently
asses [the Respondent’s] plan.” Frye’s letter was addressed to Charleen Tachibana. (G.C.
Exh. 7.)

By letter dated December 9, 2005, Tachibana responded to Frye’s earlier letter, saying
essentially that the Hospital was not going to use the declination form “as a condition of
continued employment.” However, the Respondent wanted to ensure that it “exhausted every
opportunity for staff to… make their decision regarding immunization.” Further, Tachibana
informed Frye that “[i]f the Union still seek[s] additional information,” she should contact the
director of labor relations. (G.C. Exh. 8.) On December 19, 2005, Frye sent a letter to the
Respondent’s director of labor relations, noting that Tachibana had informed her that the
Hospital did not intend to use the declination form and “will not be requiring nurses to comply
with the terms therein as a condition of employment.” Still, she continued that “even given this
assurance, I reiterate our request for the information set forth in my previous letter…” (G.C.
Exh. 9.)

On December 29, 2005, John Walburn, the Respondent’s director of labor relations, sent
Frye a letter in which he confirmed as “accurate” Tachibana’s earlier letter. Walburn
acknowledged the accuracy of Frye’s understanding that the Hospital would not be distributing
the declination form and “such will not be required [sic] inpatient nurses to comply with the terms
therein as a condition of employment.” Further, he indicated that regarding the Union’s request
for information of December 5, 2005, “due to holidays and schedules, we will have to get back
to you after the first of the year.” (G.C. Exh. 10). However, on that same date, December 29,
Rose Methven, a nurse manager and acknowledged supervisor, sent an email message entitled
“flu vacc. update” to a number of registered nurses in several departments. In that message,
Methven states that [s]tarting Sunday 1/1 all non-vaccinated staff working in patient care areas
will wear masks (do not use the same mask all day-change periodically).” She goes on to
indicate that all visitors, including the family member of patients who are not vaccinated, will be
required to wear facemasks in patient areas. Methven concluded by indicating that this policy
“will continue during the flu season through March.” (G.C. Exh. 11.)

It is clear from the Union’s subsequent action that it considered Methven’s email
message to be in contradiction with the recent written statements from Walburn and Tachibana.
Having learned from its members of Methven’s email, union attorney David Campbell sent a
letter dated December 30, 2005 to the Respondent’s Chief Executive Officer, as well as to
Tachibana, and to Steven Stahl, the Respondent’s new director of labor relations. Campbell

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references and attaches the email message from Methven. He characterizes the “directive” as
an “unlawful change in working conditions,” and as “inconsistent with the assurances
communicated to the [Union] twice in the last two weeks.” He outlines the recent history of the
declination form, including the correspondence between Fry, Tachibana, and Walburn. Finally,
Campbell requests the immediate retraction of Methven’s email and that it be communicated to
all registered nurses. While not specifically making another request for information, he
mentions that a request for information regarding the “proposed changes in working conditions”
was previously made. (G.C. Exh. 5.) As of the date of Campbell’s letter, none of the requested
information had been forthcoming from the Respondent.

Counsel for the Respondent, Debra Madsen, by letter dated January 3, 2006, responded
to Campbell. Madsen “acknowledge[d] the confusion that ha[d] been created through our
correspondence with Ms. Frye and the referenced email from one of our nurse managers.”
However, she defended the Hospital’s “infection control policy, such as masking,” as a
“standard of practice,” which the Respondent had a right to implement under the “management
rights clause” found in Article 18 of the collective-bargaining agreement. According to Madsen,
any issues of “non-compliance” with the policy would be handled through the standard
processes, which might include “progressive discipline.” Further, she indicated the documents
previously requested by Ms. Frye would be provided within the next 10 business days. (G.C.
Exh. 12.) In any event, as of January 1, 2006, the Respondent instituted the policy and required
that its registered nurses who had not been immunized for the flu either wear a facemask or
take antiviral medication.

The correspondence clearly shows that the Respondent furnished contradictory,
inconsistent responses and statements of position to the Union. Tachibana’s letter of
December 9, 2005 informed the Union that the Respondent was not going to use the declination
form “as a condition of continued employment.” Walburn’s letter of December 29, 2005
confirmed the Union’s understanding that the Respondent would not be distributing the
declination form, and that the RNs would not, as a condition of employment, be required to
comply with the terms set forth in the declination form. Obviously, this correspondence left the
Union with the reasonable impression that the Respondent was not going ahead with its
proposed policy to require non-immunized nurses to wear facemasks or take antiviral mediation.
However, also on December 29, 2005, Methven sent an email message to a number of RNs
informing them that as of January 1, 2006, the policy would be in effect, and all non-immunized
nurses would be required to wear facemasks in patient care areas.

The Respondent’s letter from Madsen dated January 3, 2006 “acknowledge[d] the
confusion that ha[d] been created through our correspondence…” but, in any event, defended
the Hospital’s institution of the infection control policy. That policy had gone into effect
January 1, 2006. While the confusing and inconsistent information may have been
unintentional, perhaps simply the result of poor communication among the managers and
supervisors, it was never the less damaging to the Union. Obviously, the wearing of facemasks
was an issue of great concern to the members of the bargaining unit, and the confusing and
inconsistent statements from management made it very difficult for the Union to respond to
those concerns.

In my view, the fact that the Respondent did not have to bargain with the Union about
the implementation of the flu prevention policy, which I conclude was a non-mandatory subject
of bargaining, did not relieve the Respondent of the duty to truthfully inform the Union of its
intentions regarding the policy. In order for the Union to properly address the concerns of its
members and the need to decide what action it should take regarding the policy, the Union
required accurate information from the Respondent. That was not what it received. In this

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respect, I am in agreement with the General Counsel and the Charging Party that the
Respondent, having furnished false and misleading information about its intention to implement
the flu prevention policy, was in effect refusing to bargain in good faith with the Union.

In Association of D.C. Liquor Wholesalers, 300 NLRB 224 (1990), the Board found that
an employer had supplied “contradictory” responses to the union representing its employees in
responding to an information request. Id. at fn. 1. The Board adopted the finding of its
administrative law judge that such conduct was false and misleading and constituted a violation
of Section (8)(a)(5) and (1) of the Act. The matter before me is similar. The Union was
prejudiced in its representational responsibility to its bargaining unit members by having been
given contradictory information as to the Respondent’s intention to implement the flu prevention
policy. Without accurate information as to the Respondent’s intention, the Union’s decision
making ability was significantly hampered. The misleading information also caused the Union to
be “undercut” in the eyes of its members, who expected that the Union’s representations about
the Respondent’s intentions would be accurate. Whether deliberate or not, I find the
Respondent’s action to constitute a failure to bargain in good faith.

Accordingly, I find and conclude that the Respondent has violated Section 8(a)(5) and
(1) of the Act by failing to bargain in good faith, as alleged in paragraph 7 of the complaint.

3. Failure to Provide Information in a Timely Manner

The General Counsel alleges in paragraph 6 of the complaint that since December 5,
2005, the Respondent has failed and refused to provide the Union in a timely manner with “all
documents recording or reflecting objections, complaints or comments regarding the plans,
forms or requirements regarding immunization plans…,” which documents were requested by
the Union.

It is undisputed that in a letter dated December 5, 2005, Barbara Frye, the Union’s
director of labor relations, expressed the Union’s concern about the Respondent’s plan to
require that non-immunized nurses either wear facemasks in patient care areas or take antiviral
medication, and also concern over the use of the declination form. In her letter to the
Respondent, Frye requested “further information…to intelligently asses your plan.” A list of
items was requested, including item number 4, “All documents recording or reflecting objections,
complaints or comments regarding the plans, forms or requirements referenced in response to
items 2 and 3 above.” (G.C. Exh. 7.) Items 2 and 3 refer to the Respondent’s “immunization
plans.”

What the Union was seeking in item number 4 was principally records of any objections
raised, complaints about, or comments regarding the flu prevention plan made by bargaining
unit members to the Respondent. Simply put, what the Union wanted to see was the reaction of
its bargaining unit members to the masking policy as reflected in correspondence with hospital
management through such means as email messages. It is undisputed that the Hospital
maintains an intranet all staff communication forum known as the “VM Staff Forum.” It was
certainly reasonable to assume that at least some objections, complaints, or comments made
by RNs to the Respondent about the masking policy would have been through email postings to
this forum.

It is the position of the Respondent, as expressed in counsel’s post-hearing brief, that
the information requested by the Union in the December 5, 2005 letter (G.C. Exh. 7.) was not
relevant, was confusing, and that, in any event, the Respondent made a good faith attempt to
comply with the request. I do not agree. To begin with, the requested material was clearly

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relevant. There is no dispute that certain of the registered nurses represented by the Union
were very unhappy and highly upset about the Respondent’s flu prevention policy and the
requirement that they wear a facemask in patient care areas if they declined other methods of
flu prevention. The Board has repeatedly held that information regarding unit employees is
presumptively relevant. See Industrial Welding Company, 175 NLRB 477 (1969); Magma
Copper Company, 208 NLRB 329 (1974). As the bargaining representative, the Union had the
responsibility of gathering information about its members’ feelings regarding the Respondent’s
policy. It was attempting to do just that when it requested any such information in the
possession of the Respondent.

While I have concluded that the Respondent had no duty to bargain with the Union over
the imposition of its flu prevention policy, the Union still had the right to the requested
information. The Union needed the requested information in order to determine how its
members felt about the policy, so it could intelligently decide what course of action to follow
regarding the Respondent’s establishment of this policy. The information sought was certainly
relevant to the Union’s role as a bargaining representative. In my opinion, the Union would
have been negligent in its representational responsibilities had it not requested the information
in question. Since the Union’s request concerned the bargaining unit employees and their
concerns about the Respondent’s flu prevention policy, the information requested was
relevant.16

It was not until April 25, 2006, at a face to face meeting, where the Respondent finally
furnished the Union with what it had been requesting for four and a half months, since
December 5, 2005, that being “unredacted” copies of the RNs’ email messages to the “VM Staff
Forum” regarding the flu prevention policy. Even if the delays in furnishing the information were
not intentional, they display a lack of interest on the part of the Respondent’s managers in
furnishing the requested information in any sort of a timely fashion. Such conduct does not
constitute a “good faith” effort on the part of the Respondent’s managers to fulfill the duty of
timely furnishing the requested information.

The chronology is clear. Tachibana first responded on December 9, 2005, to the
request with a direction for the Union to contact the Respondent’s director of labor relations.
(G.C. Exh. 8.) Next, John Walburn advised the Union on December 29, 2005, that he could not
“get back to you until after the first of the year.” (G.C. Exh. 10.) Attorney Debra Madsen then
became involved and on January 3, 2006, advised the Union that the documents requested by
the Union would be provided within “the next 10 business days.” (G.C. Exh. 12.) On
January 16, 2006, Madsen provided certain information to the Union. However, she furnished
no information under item number 4 in the Union’s original request, concluding that as the
declination form was never used, there were no comments about the form in the possession of
the Respondent. Further, Madsen stated that to the extent that there were objections,
complaints or comments to the masking and antiviral medication, they “have taken place within
the religious and medical accommodation process.” (G.C. Exh. 13.) By this statement she was
apparently suggesting that any such responses would be confidential and, therefore, not
producible.17
16 Although there may have been other methods of obtaining this same information, such as
by polling its members, this does not prevent the Union from making the request, nor relieve the
Respondent of the duty to furnish the information.
17 While the Respondent initially made a confidentiality argument to the Union, Counsel for
the Respondent did not renew this argument before the undersigned at trial or in his post-
hearing brief.

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Union attorney Campbell responded by letter dated February 8, 2006, indicating the
Union’s position that the Respondent had failed to furnish information in a timely manner, and in
particular had totally failed to produce any documents in response to item number 4 in the
original request for information. Campbell pointed out that the Union’s request was not limited
to the declination form alone, but, rather, to any “plans, forms or requirements” as they involved
flu prevention alternatives to immunization. (G.C. Exh. 14.) I am of the view that to the extent
there was any confusion or uncertainty on the part of the Respondent as to what information the
Union was seeking under item number 4, Campbell’s letter of February 8 totally eliminated such
confusion or uncertainty.

By letter of February 9, 2006, Madsen informed Campbell that she was unable to comply
with the request for “additional information” for approximately one week. However, she now
understood that by item number 4 in its request, the Union was seeking materials such as
employee email postings to the Hospital’s “internal VM Staff Forum,” where employees
commented about the flu prevention policy, which emails the Respondent would attempt to
provide. (G.C. Exh. 15.) Madsen next submitted to the Union by letter dated February 16,
2006, among other information, employee email postings to the “VM Staff Forum,” the intranet
all staff communication forum, concerning any objections, complaints, or comments pertaining
to the Respondent’s influenza prevention program. However, as Madsen pointed out in her
cover letter, “These postings have been redacted so that the individual staff member’s name
and/or personally identifiable information is not disclosed.” (G.C. Exh. 16.)

In yet further correspondence on this subject, David Campbell sent the Respondent a
letter dated March 7, 2006, in which he criticized the Hospital’s response to the Union’s request
for information, specifically the submission of redacted versions of staff postings on the intranet.
Campbell pointed out that as the postings had been available to hospital employees with access
to the intranet, there did not appear to be a confidentiality basis for refusing to furnish the Union
with identifying information. (G.C. Exh. 17.) There then followed some additional
correspondence, the most significant of which is a letter from Debra Madsen dated March 15,
2006, in which the Respondent took the position that the “identities” of those employees who
posted messages about the flu prevention policy on the Respondent’s intranet site were “not
relevant” to the issues surrounding the policy. (G.C. Exh. 19.)

Finally, the parties met face to face on April 25, 2006, in an effort to resolve the
continuing dispute as to whether the Respondent had furnished all relevant information
requested by the Union. According to the testimony of Barbara Frye, it was at that meeting that
the Respondent furnished the Union with the unredacted versions of the emails from the staff
forum where employees, including registered nurses, now identified,18 had made comments,
complaints, or objections about the Respondent’s flu prevention program, including the masking
and antiviral medication alternatives. The parties still did not agree that all requested
information had been provided.

In any event, in regards to that information under item number 4 in the original request
letter of December 5, 2005 (G.C. Exh. 7.), it is clear that the unredacted emails were not
furnished to the Union until April 25, 2006, some four and a half months later. Even if one were
to conclude that the original request was confusing, any such confusion or uncertainty was
18 Unless it was able to identify those employees who communicated with the Respondent
through email messages to the intranet site, the Union would be unable to determine which, if
any of them, were members of the bargaining unit.

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eliminated by Campbell’s clarifying letter of February 8, 2006. (G.C. Exh. 14.) Still, it took the
Respondent another two and a half months, until April 25, 2006, to finally provide the Union with
the documents it was seeking.

The Board has held that an unwarranted delay in furnishing relevant requested
information is as much of a violation of the Act as is a refusal to furnish the information at all.
Woodland Clinic, 331 NLRB 735, 736 (2000) (seven-week delay unreasonable); U.S. Postal
Service, 308 NLRB 547, 550 (1992) (four week delay unreasonable). Of course, every situation
is different. However, in the matter before me, the Respondent delayed in getting the requested
information to the Union for a minimum of two and a half months, from February 8 to April 25,
2006. Certainly the Respondent should have understood the urgency with which the Union
viewed this matter. The masking/antiviral medication options had gone into effect on January 1,
2006, for those RNs who declined to be immunized. Numerous RNs in the bargaining unit were
highly upset about the policy and the Union had been attempting to obtain information on this
issue since December 5, 2005. The Respondent was aware of all this, yet repeatedly delayed
in furnishing the Union with the requested information.

The Respondent’s conduct constituted a failure to timely furnish the Union with the
information requested in item 4 of the Union’s request letter dated December 5, 2005.
Accordingly, I find and conclude that the Respondent violated Section 8(a)(5) and (1) of the Act,
as alleged in complaint paragraph 6 and its subparagraphs.

Conclusions of Law

1. The Respondent, Virginia Mason Hospital, (a division of Virginia Mason Medical
Center) is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and a healthcare institution within the meaning of Section 2(14) of the Act.

2. The Union, Washington State Nurses Association, is a labor organization within the
meaning of Section 2(5) of the Act.

3. The following registered nurses employed by the Respondent, herein collectively
called the Unit, constitute an appropriate unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act: All full time, part time and per diem nurses employed as
registered nurses by the Respondent, excluding all other supervisory and
administrative/management positions and all other employees.

4. At all times material herein, the Union has been the exclusive representative of all the
registered nurses within the appropriate Unit described above for the purpose of collective-
bargaining within the meaning of Section 9(a) of the Act.

5. By the following acts and conduct the Respondent has violated Section 8(a)(5) and (1)
of the Act:

(a) By responding to the Union’s request for relevant information by providing false and
misleading information; and

(b) By failing and refusing to provide the Union in a timely fashion with requested
relevant information necessary for the Union to perform its role as bargaining representative.

6. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.

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7. The Respondent has not violated the Act except as set forth above.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent shall be required to post a notice that assures its registered nurses that
it will respect their rights under the Act.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended19

ORDER

The Respondent, Virginia Mason Hospital, (a division of Virginia Mason Medical Center),
its officers, agents, successors, and assigns, shall

1. Cease and desist from:

(a) Providing false and misleading information to the Union in response to the Union’s
request for relevant information;

(b) Failing and refusing to provide the Union in a timely fashion with requested relevant
information necessary for the Union to perform its role as bargaining representative; and

(c) In any like or related manner interfering with, restraining, or coercing its registered
nurses in the exercise of the rights guaranteed to them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Within 14 days after service by the Region, post at its hospital facility in Seattle
Washington, copies of the attached notice marked “Appendix.”20 Copies of the notice, on forms
provided by the Regional Director for Region 19, 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 registered nurses
are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, 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
19 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the board and all objections to them shall be deemed
waived for all purposes.
20 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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copy of the notice to all current registered nurses and former registered nurses employed by the
Respondent in the bargaining unit at any time since December 9, 2005; and

(b) 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.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated at Washington, D.C., September 12, 2006.

_______________________
Gregory Z. Meyerson
Administrative Law Judge

JD(SF)-49-06

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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT do anything that interferes with these rights. Specifically:

WE WILL NOT refuse to bargain in good faith with the Washington State Nurses Association
(the Union) as the exclusive representative of the Registered Nurses employed at our Seattle,
Washington hospital facility (the bargaining unit) by providing false and misleading information
to the Union about our intention to implement an influenza prevention policy.

WE WILL NOT fail and refuse to furnish the Union in a timely fashion with relevant and
necessary information concerning our influenza prevention policy, or any other relevant
information needed by the Union in order for it to perform its representational activities on behalf
of the members of the bargaining unit.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law.

VIRGINIA MASON HOSPITAL, (a division of Virginia
Mason Hospital Center)
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
915 2nd Avenue, Federal Building, Room 2948
Seattle, Washington 98174-1078
Hours: 8:15 a.m. to 4:45 p.m.
206-220-6300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 206-220-6284.