FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIRGINIA MASON MEDICAL CENTER, 

Petitioner, No. 07-73851

v. NLRB No.  19-CA-29046 NATIONAL LABOR RELATIONS

BOARD, OPINION

Respondent. 

On Petition for Review of an Order of the

National Labor Relations Board

Argued and Submitted

February 6, 2009—Seattle, Washington

Filed February 25, 2009

Before: Betty B. Fletcher, Pamela Ann Rymer and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge B. Fletcher

2313
COUNSEL

Mark A. Hutcheson, Jennifer K. Shubert, Davis Wright Tremaine LLP, for petitioner Virginia Mason.

Linda Dreeben, Robert Englehart, Christopher YoungNational

Labor Relations Board, for respondent National Labor Relations Board. 

OPINION

B. FLETCHER, Circuit Judge: 

Virginia Mason Medical Center (“Virginia Mason”)

appeals the National Labor Relation Board’s (“NLRB” or “the

Board”) finding that it committed an unfair labor practice.

The Board found that Virginia Mason unlawfully withdrew

recognition from the United Staff Nurses Union Local 141

(“the Union”) within the protected certification year period.

Virginia Mason argues that the certification year elapsed prior

to its withdrawal of recognition. We have jurisdiction pursuant to 29 U.S.C. §§ 160(e) and (f), and we affirm. 

FACTS

Virginia Mason operates twenty health care facilities in the

Puget Sound region. The facility at issue in this appeal is the

VIRGINIA MASON MEDICAL CENTER v. NLRB 2315
inslow Clinic, located on Bainbridge Island. The Union won

certification as the representative of unit employees at the

Winslow Clinic on December 2, 2000. Virginia Mason tested

the certification by refusing to bargain with the Union. The

Board found against Virginia Mason, and held that it must

bargain with the Union. The remedial order stated:

To ensure that the employees are accorded the services of their selected bargaining agent for the period

provided by law, we shall construe the initial period

of the certification as beginning the date the Respondent begins to bargain in good faith with the Union.

On May 28, 2002, the D.C. Circuit denied Virginia Mason’s

petition for review and granted the Board’s cross-appeal for

enforcement of the remedial order. Virginia Mason submitted

to the court’s judgment and began compliance with the terms

of the remedial order. 

On June 25, 2002, the Union requested information from

Virginia Mason, which it timely supplied. On August 28, the

Union requested a meeting to begin negotiations and suggested three possible dates. Two days later Virginia Mason

accepted October 1, 2002, as the date of the first bargaining

meeting. 

The parties met twenty-two times in the following months.

On September 23, 2003, the clinic manager received a decertification petition signed by eight of the nineteen unit members. The final meeting occurred on September 26, at which

time Virginia Mason withdrew recognition from the Union

because it believed that the Union no longer had majority support. The Union then filed an unfair labor practice charge

alleging that Virginia Mason had hired and fired employees

based on whether they supported the Union, had encouraged

a decertification campaign, and had refused to bargain with

the Union in good faith. The NLRB’s General Counsel

reviewed this charge, and then filed a complaint alleging that

2316 VIRGINIA MASON MEDICAL CENTER v. NLRB
Virginia Mason’s conduct violated the National Labor Relations Act, 29 U.S.C. § 141 et seq.

At the end of the Board’s case in chief, the ALJ raised sua

sponte the issue of whether Virginia Mason’s withdrawal of

recognition occurred during the protected certification year.

Virginia Mason argued that the year began either when the

D.C. Circuit affirmed the Union’s certification (May 28,

2002), or when it first responded to the Union’s information

request (June 2002). The ALJ disagreed and found that the

certification year period began on October 1, 2002, when the

parties had their first face-to-face meeting. The ALJ concluded that Virginia Mason had violated 29 U.S.C. § 158 by

withdrawing recognition on September 26, 2003, within the

certification year period. The Board affirmed the ALJ’s findings and adopted his recommended order in a 2/1 decision. 

DISCUSSION

“The Chevron doctrine requires that this court defer to the

NLRB’s interpretation of the NLRA if its interpretation is

rational and consistent with the statute.” UFCW, Local 1036

v. NLRB, 307 F.3d 760, 766-67 (9th Cir. 2002); see Chevron

USA, Inc. v. Natural Resources Def. Council, Inc., 467 U.S.

837, 843-44 (1984). In addition, the Board’s interpretation of

its own remedial order “enjoys a good deal of discretion.”

NLRB v. Nat’l Med. Hosp. of Compton, 907 F.2d 905, 909

(9th Cir. 1990). 

Once a labor union is certified as the exclusive bargaining

representative of a unit of employees, the union is entitled to

a non-rebuttable presumption of majority status for a reasonable time, typically one year. Id. at 907. During this “certification year” period, the employer must recognize and bargain

with the union; it may not withdraw recognition. Id. A perceived loss of majority status, as demonstrated through a

decertification petition or otherwise, does not entitle the

VIRGINIA MASON MEDICAL CENTER v. NLRB 2317
employer to withdraw recognition during this year. Brooks v.

NLRB, 348 U.S. 96, 103 (1954). 

A. Timing of the Certification Year 

[1] Virginia Mason withdrew recognition from the Union

on September 26, 2003, but the certification year did not end

until October 1, 2004 — one year from the parties’ first bargaining session. Virginia Mason’s contention that the certification year started when the D.C. Circuit certified the Union

is plainly wrong. It is within the Board’s discretion to decide

when the one-year period should start. Compton, 907 F.2d at

909 (citing Brooks, 348 U.S. at 104). In this case, the Board’s

remedial order clearly stated that, “we shall construe the initial period of the certification as beginning the date the

Respondent begins to bargain in good faith with the Union.”

(Emphasis added.) Indeed, this language is “more or less standard” in remedial orders. Compton, 907 F.2d at 907. Virginia

Mason cannot avail itself of the argument that it lacked notice

as to when the certification year would start. 

[2] Furthermore, providing requested information to a

union does not constitute bargaining. It is true that responding

to information requests is a requisite component of good faith

bargaining, but it is not sufficient in and of itself. The Board

has previously held that the parties must actually hold a bargaining meeting in order to trigger the certification year. Van

Dorn Plastic Mach. Co., 300 N.L.R.B. 278, 278 (1990), aff’d,

939 F.2d 402 (6th Cir. 1991). “If the certification year were

to begin when an employer furnishes information, a union

could, in effect, be penalized for requesting information prior

to negotiations, because that could result in less time for

negotiations than if the union had not requested the information.” Id. at 278. We hold that the certification year started

with the first bargaining meeting, and not when Virginia

Mason complied with just one component of bargaining. 

[3] Finally, we reject Virginia Mason’s argument that it

should be excused from penalty because it withdrew recogni2318 VIRGINIA MASON MEDICAL CENTER v. NLRB
tion just four days before the certification year expired. There

is no de minimis exception for technical noncompliance with

Board orders. We are especially wary of such arguments

when employers invoke employee Section 7 rights as justification for an unfair labor practice. See Brooks, 348 U.S. at

103 (“To allow employers to rely on employees’ rights in

refusing to bargain with the formally designated Union is not

conducive to [industrial peace], it is inimical to it.”). LTD

Ceramics, Inc., 341 N.L.R.B. 86 (2004), is inapposite,

because there the employer waited until after the expiration of

the certification year to withdraw recognition from the union.

We therefore affirm the Board’s finding that Virginia

Mason committed an unfair labor practice by withdrawing

recognition from the Union during the certification year. 

B. Inexcusable Delay 

[4] A union’s non-rebuttable presumption of majority status

during the certification year may be lost if the union causes

an inexcusable delay in bargaining. Compton, 907 F.2d at

909. Inexcusable delay is an affirmative defense to an unfair

labor practice charge, and the burden of proof is on the party

seeking to invoke this defense. Id. (looking to the evidence

proffered by the employer on delay); c.f. Flying Food Group,

Inc. v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006) (finding

that loss of majority status is an affirmative defense to a premature withdrawal charge). 

[5] Virginia Mason has offered no evidence of bad faith

delay by the Union, other than the bare assertion that four

months is an inexcusably long time to wait to start bargaining.

We agree with the Board’s finding that four months is a reasonable amount of time for the Union to re-establish contacts

with the unit employees, and to process the information

received from Virginia Mason. Therefore, we hold that the

Union was entitled to retain its presumption of majority status

during the certification year. 

VIRGINIA MASON MEDICAL CENTER v. NLRB 2319
CONCLUSION

The decision of the NLRB is hereby AFFIRMED. We

remand the matter to the Board to oversee implementation of

the affirmative bargaining order contained in its decision. 

2320 VIRGINIA MASON MEDICAL CENTER v. NLRB