NLRB v. AMFM of Summers Cnty ( 1996 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    NATIONAL LABOR RELATIONS BOARD,
    Petitioner,
    v.
    No. 95-1323
    AMFM OF SUMMERS COUNTY,
    INCORPORATED,
    Respondent.
    AMFM OF SUMMERS COUNTY,
    INCORPORATED,
    Petitioner,
    No. 95-1812
    v.
    NATIONAL LABOR RELATIONS BOARD,
    Respondent.
    On Application for Enforcement and Cross-petition for Review of
    an Order of the National Labor Relations Board.
    (11-CA-15659)
    Argued: March 4, 1996
    Decided: June 20, 1996
    Before MURNAGHAN and ERVIN, Circuit Judges, and YOUNG,
    Senior United States District Judge for the District of Maryland,
    sitting by designation.
    _________________________________________________________________
    Enforcement granted by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: George Jerald Oliver, SMITH, HELMS, MULLISS &
    MOORE, L.L.P., Raleigh, North Carolina, for AMFM. Meredith L.
    Jason, NATIONAL LABOR RELATIONS BOARD, Washington,
    D.C., for NLRB. ON BRIEF: Frederick L. Feinstein, General Coun-
    sel, Linda Sher, Acting Associate General Counsel, Aileen A. Arm-
    strong, Deputy Associate General Counsel, Linda Dreeben,
    Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
    Washington, D.C., for NLRB.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    The National Labor Relations Board ("NLRB") filed an application
    with this Court for enforcement of its order enjoining AMFM of Sum-
    mers County, Inc. ("AMFM") from certain unfair labor practices and
    directing a second union election. AMFM filed a cross-petition for
    review. We find the order supported by substantial evidence and grant
    enforcement.
    I.
    AMFM operates nursing facilities at nine locations in West Vir-
    ginia, including a facility at Hinton, West Virginia in Summers
    County. In February 1993, employees James Gill and Kay Fleshman,
    both Licensed Practical Nurses ("nurses") at the Summers facility,
    contacted the United Mine Workers to discuss union representation.
    In April 1993 they contacted the United Steelworkers of America,
    AFL-CIO ("the Union"), which eventually agreed to represent the
    employees of AMFM in their organizational effort at the Summers
    facility. On May 27, 1993, the Union sent a letter to AMFM identify-
    2
    ing 17 employees, including Gill and Fleshman, who were actively
    engaged in a union campaign at the facility. On July 6 the Union filed
    a petition seeking to represent employees at the Hinton facility. On
    September 8, 1993, a secret ballot election at the Hinton facility
    resulted in a vote of 39 for, and 48 against, Union representation.
    The Union filed unfair labor practice charges on September 27,
    1993, alleging that AMFM promoted nurses from the eligible voting
    pool, disciplined Union activists, and intimidated employees in an
    attempt to influence the outcome of the Union election. An Adminis-
    trative Law Judge ("ALJ") issued an opinion in the Union's favor and
    the NLRB adopted the ALJ's opinion and now seeks enforcement of
    the order. AMFM subsequently filed a petition for review.
    II.
    Enforcement of NLRB orders is denied only when the reviewing
    court is unable to "conscientiously find that evidence supporting that
    decision is substantial, when viewed in the light that the record in its
    entirety furnishes, including the body of evidence opposed to the
    Board's view." Universal Camera Corp. v. NLRB , 
    340 U.S. 474
    , 488
    (1951). For example, if the NLRB ignored material evidence or disre-
    garded or eliminated evidence by simply discrediting an employer's
    witnesses, enforcement may be denied. NLRB v. Huntington Hosp.,
    Inc., 
    550 F.2d 921
    , 924 (4th Cir. 1977) (citing NLRB v. United Brass
    Works, Inc., 
    287 F.2d 689
    , 691 (4th Cir. 1961)). But the reviewing
    court is not to substitute its own choice for that of the NLRB, even
    when the court might have drawn a different conclusion had it
    decided the question de novo. Universal Camera, 
    supra, at 488
    . We
    are particularly reluctant to re-examine credibility determinations
    made by the NLRB or an ALJ. See Benson Veneer Co. v. NLRB, 
    398 F.2d 998
    , 1000 (4th Cir. 1968). With these basic principles in mind
    we turn to the specific findings of the NLRB.
    A. PROMOTION OF THE LICENSED PRACTICAL NURSES.
    AMFM promoted the nurses to supervisors on July 19 and granted
    them a $.25 raise. Two days later, the nurses were informed by an
    attorney for AMFM that they could not participate in Union activities.
    3
    The NLRB found that AMFM's conduct violated 
    29 U.S.C. § 158
    (a)(1), which provides that it is an unfair labor practice "to inter-
    fere with, restrain, or coerce employees in the exercise of the rights
    [to organize a union]." An employer violates this section when its
    conduct may reasonably tend to coerce or intimidate employees.
    Standard-Coosa-Thatcher Carpet Yarn Division v. NLRB , 
    691 F.2d 1133
    , 1137 (4th Cir. 1982), cert. denied, 
    460 U.S. 1083
     (1983) (citing
    NLRB v. P.B. & S. Chemical Co., 
    567 F.2d 1263
    , 1267 (4th Cir.
    1977)). Promotion of employees to supervisory positions may be
    intended to curtail a union organizational campaign. See Hospitality
    Motor Inn, Inc., 
    667 F.2d 562
     (6th Cir. 1982), cert. denied 
    459 U.S. 969
     (1982). We have held that a company policy that had been
    planned for a long time can constitute an unfair labor practice if its
    implementation is accelerated to hinder union activities. J.P. Stevens
    & Co. v. NLRB, 
    668 F.2d 767
    , 771 (4th Cir. 1982), vacated on other
    grounds 
    458 U.S. 1118
     (1982); NLRB v. Preston Feed Corp., 
    309 F.2d 346
     (4th Cir. 1962). It is also an unfair labor practice to improp-
    erly inform non-supervisory employees they cannot engage in union
    activities and could be discharged because they are supervisors.
    Shelby Memorial Home Assoc., 
    1 F.3d 550
    , 560-61 (7th Cir. 1993).
    Both parties recognize that the nurses were promoted under a plan
    that had been conceived long before the Union had been contacted.
    As early as March 1991, John Elliot, the president of AMFM, had
    concluded that management staff at all nine facilities should include
    nurses. In the early fall of 1992, a committee was formed to address
    this issue and it met from December 30, 1992 through the spring of
    1993. On June 11, 1993, the committee drafted a proposed implemen-
    tation plan, on June 28 Elliot approved the plan, and on July 19 he
    implemented it at all nine facilities by a letter to all nurses. On July
    20 Shrewsbury met with the nurses at the Summers facility to inform
    them of the change, which included a $.25 raise. On July 21 AMFM
    informed the nurses at the Summers facility they could not engage in
    certain activities connected with unionization because they were
    supervisors.
    The NLRB interpreted this chain of events as showing that AMFM
    tried to promote the most active Union organizers, including Gill and
    Fleshman, out of the eligible voting pool and silence them in order to
    stifle the organizational effort. The NLRB found that the promotion
    4
    was hastily implemented because of the unionization activities, noting
    that the July 19 promotion occurred two weeks after the Union peti-
    tion. In addition, the NLRB gave import to a May 21 memo from
    Pame Lawson, the director of human resources, which told the com-
    mittee that "OUR TIME IS GETTING SHORT!!!!" Furthermore, Gill
    and Debbie Ashley, the former Director of Nurses, testified that the
    nurses were not given new job descriptions, duties, or training until
    November 1993.
    In response, AMFM claims that the intended January 1993 imple-
    mentation was delayed to July 1993 for various reasons, including
    state approval of continuing education for nurses. AMFM contends
    the promotion of nurses at all nine facilities is contrary to any inten-
    tion to weaken the Union. AMFM also notes that after the NLRB
    found that the nurses were not supervisors on August 17, it posted a
    notice to employees indicating that it would not appeal the ruling and
    management met with the nurses three weeks before the election to
    explain they were eligible to vote.
    NLRB's holding that AMFM interfered with the nurses' right to
    organize is supported by substantial evidence. Although the record
    reflects that the promotion of nurses had been a goal of the company
    for a long time, the timing is evidence that its purpose was, in part,
    to curtail Union activities. The Union petition on July 6 may not have
    triggered the proposal, as NLRB seems to suggest, because Elliot had
    approved the plan before the Union petition was filed. Nevertheless,
    AMFM had known of Union activity and the employees involved
    since at least May 27, and the rapid implementation of the promotion
    from its formal proposal on June 11 to the counseling on July 21
    stands in contrast to the lack of any significant follow-up until after
    the Union election. No detailed plan to incorporate the nurses into the
    management structure was announced with the promotion, and
    AMFM ignored this supposedly important management change until
    November. AMFM's explanation that the delay was due to late state
    approval of continuing education for nurses is disingenuous, for
    AMFM did not offer any credible explanation why continuing educa-
    tion was crucial to integrating nurses into management. That the pro-
    motion was implemented at all nine AMFM facilities does not show
    that the threat of unionization played no part in the decision, as none
    of the other facilities had been unionized and the NLRB could have
    5
    reasonably decided that the promotion was intended to curtail any
    unionization of AMFM. Nor is the apparently good faith compliance
    with the August 17 ruling relevant to AMFM's motivation in promot-
    ing the nurses in the first place.
    B. DISCIPLINARY ACTION TOWARDS GILL AND FLESHMAN.
    Rick Shrewsbury, administrator of the Summers facility, testified
    that supervisors complained on July 27 that Gill was soliciting for the
    Union during working hours. Later that day Shrewsbury received
    written complaints from employees about the solicitations, including
    one from nursing assistant Brenda Allen that claimed a July 25 solici-
    tation from Gill interfered with her work. Based on Shrewsbury's
    instructions, the Director of Nursing, Debbie Ashley, issued an oral
    disciplinary warning to Gill on July 31 and later issued a written
    warning to Gill and reminded him of AMFM's policy against solicita-
    tion. Also at Shrewsbury's direction, on August 6 Ashley issued an
    oral warning to Kay Fleshman about her negative attitude, arguments
    with co-workers, derogatory comments about residents under her
    care, and refusal to wear her name tag.
    NLRB found that nurses Gill and Fleshman were disciplined
    because of their general activism on behalf of the Union and in retali-
    ation for testifying at an NLRB hearing on July 28, and that these
    warnings violated 
    29 U.S.C. § 158
    (a)(1), which prohibits conduct
    tending to intimidate employees, and 
    29 U.S.C. § 158
    (a)(3), which
    prohibits discrimination "in regard to . . . any term or condition of
    employment to discourage membership in any labor organization
    . . . ." NLRB also found that the warnings constituted a separate vio-
    lation of 
    29 U.S.C. § 158
    (a)(4), which provides that it is an unfair
    labor practice "to discharge or otherwise discriminate against an
    employee because he has filed charges or given testimony . . . ." An
    employer violates these sections when anti-union considerations are
    "a motivating factor" for the action. NLRB v. Transportation Manage-
    ment Corp., 
    462 U.S. 393
    , 401-403 (1983), overruled on other
    grounds, 
    114 S.Ct. 2251
     (1994); NLRB v. Nueva Engineering, Inc.,
    
    761 F.2d 961
    , 967 (4th Cir. 1985). Both direct and circumstantial evi-
    dence may be relied upon to infer improper motive. See NLRB v. Low
    Kit Mining Co., 
    3 F.3d 720
    , 728 (4th Cir. 1993); American Thread
    Co. v. NLRB, 
    631 F.2d 316
    , 321 (4th Cir. 1980). Of course, an
    6
    employer must have known that the affected employees are engaged
    in protected activities to have the requisite motive. See NLRB v. Dan-
    iel Construction Co., 
    731 F.2d 191
    , 197 (4th Cir. 1984).
    NLRB relied on Ashley's testimony that Elliot told her to find
    some basis to reprimand nurses and Shrewsbury told her to "clean
    house." Ashley also testified she steered Allen towards an incorrect
    portrayal of the July 25 conversation with Gill, and that she had never
    before disciplined any employee for violation of the no-solicitation
    rule. Importantly, the ALJ had found Ashley a credible witness based
    on her demeanor and collaborating evidence. The NLRB also relied
    on the timing of the warning to Gill, which happened three days after
    he testified at the NLRB hearing, and his key role in union activities
    at the facility. Regarding the reprimand of Fleshman, NLRB relied on
    her union activism, timing of the warning shortly after she had testi-
    fied, and Ashley's testimony that other employees were not disci-
    plined for the same behavior to infer that AMFM had an improper
    motivation to discipline her.
    AMFM claims that Gill was only counselled to avoid soliciting
    during working time, and that he was free to solicit at other times, as
    he continued to do with AMFM's knowledge. AMFM also attacks
    Ashley's credibility by claiming she was biased against the company
    because she was terminated for poor performance and contends that
    Shrewsbury's desire to "clean house" simply referred to Ashley's fail-
    ure to discipline employees for unexcused absences and that her testi-
    mony was directly refuted by other managers.
    We hold that the NLRB's finding that Gill and Fleshman were dis-
    ciplined for improper reasons is supported by substantial evidence.
    AMFM certainly knew that they were actively engaged in the union-
    ization effort. The application of the non-solicitation rule to Gill, one
    of the leading Union organizers, soon after he testified at the NLRB
    hearing, is circumstantial evidence that AMFM disciplined him
    because of his Union activities. The direct evidence of motive is from
    Ashley's testimony, and we are reluctant to overrule the ALJ's first-
    hand determination of her credibility. Had AMFM simply wanted
    employees to follow the non-solicitation rule, as it claims, it could
    have held a general meeting or posted a general announcement
    instead of meeting only with Gill. And although the decision to repri-
    7
    mand Gill was allegedly made before the hearing, it could have been
    made in retaliation for his future testimony at the NLRB hearing, for
    AMFM knew he was going to testify. NLRB was also justified in
    finding AMFM's treatment of Fleshman improper, based on the prox-
    imity of the discipline to the hearing date, her key role in Union activ-
    ities, and Ashley's testimony.
    C. SUSPENSION OF EVALUATIONS AND RAISES.
    AMFM evaluates employees annually on the date they were hired
    and grants raises based on the evaluations. Throughout the union
    campaign, AMFM completed evaluations and granted raises. After
    the Union filed objections on September 13, Shrewsbury delayed
    completion of annual employee evaluations and merit pay adjust-
    ments for nine employees at the Summers facility. The benefits were
    eventually granted retroactive to the date for which they were origi-
    nally scheduled.
    The NLRB found that the suspension violated 
    29 U.S.C. § 158
    (a)(1) and 
    29 U.S.C. § 158
    (a)(3), which provide that it is an
    unfair labor practice to discriminate in regard to any tenure of
    employment to discourage union membership or retaliate against
    union activities. Delays in benefits during a campaign are unfair labor
    practices even when the benefits are eventually given, unless there is
    a legitimate business purpose that is not pretextual. Southern Mary-
    land Hospital Center v. NLRB, 
    801 F.2d 666
    , 668-69 (4th Cir. 1986).
    NLRB concluded that AMFM attempted to discourage union mem-
    bership by blaming the suspension on the Union's objection to the
    election. This conclusion was based on Ashley's testimony that
    Shrewsbury said he imposed the freeze because of the allegations
    filed by the Union and the tension caused by the election. In response,
    AMFM claims Shrewsbury delayed the evaluations to satisfy himself
    that evaluations done in the aftermath of the election were fair and
    accurate. Further, it claims that evaluations had been delayed before
    at the Summers facility for various reasons, including several occa-
    sions in 1993 prior to the election.
    The NLRB finding is supported by substantial evidence. Although
    no evaluations were suspended during the Union campaign, evalua-
    8
    tions were frozen shortly after the close and contested union election.
    Employees were adversely affected for an indefinite period and were
    told that the action was taken because of Union activities. The NLRB
    could have found that suspension was intended to dampen enthusiasm
    for another election.
    D. THREAT OF CLOSURE.
    On August 23 or 24, Dr. Jack Woodrum, who was accompanied by
    Clinical Care Coordinator Barbara Meadows and Social Services
    Director Ray Nutter, asked Gill why he was trying to unionize the
    Summers facility and opined that Elliot would close the Summers
    facility if it became unionized.
    The NLRB found this statement violated 29 U.S.C.§ 158(a)(1)
    because it was an attempt to intimidate employees and influence the
    outcome of the union election. An employer is responsible for com-
    ments made by others if employees had "just cause to believe [the
    person making the comment] was acting for or on behalf of the com-
    pany." Proctor & Gamble Manufacturing Co. v. NLRB, 
    658 F.2d 968
    ,
    984 n. 18 (4th Cir. 1981), cert. denied, 
    459 U.S. 879
     (1981) (quoting
    NLRB v. Texas Independent Oil Co., 
    232 F.2d 447
    , 450 (9th Cir.
    1956)). In this context, attribution is broader than the strict rules of
    agency law. 
    Id.
    The NLRB did not find Woodrum was AMFM's agent, but rather
    that Woodrum had special status as the medical director of the Sum-
    mers facility since its inception, and in this capacity had reviewed
    AMFM's policies and procedures, signed the front page of AMFM's
    policy and procedure manuals, trained facility employees, and been
    included among the managers' names on the facility. Under these cir-
    cumstances, the NLRB found that Woodrum's comments were attrib-
    utable to AMFM. The NLRB also found that Woodrum's comments
    were ratified by the silence of Meadows and Nutter. AMFM claims
    that it is not responsible for the conduct of Woodrum, who is an inde-
    pendent contractor without managerial authority, does not participate
    in manager's meetings, and has no financial stake in AMFM. AMFM
    also emphasizes that Gill testified he knew Woodrum was not part of
    AMFM's chain of command.
    9
    We affirm the decision of the NLRB holding Woodrum's com-
    ments were an attempt to intimidate a supporter of the Union. There
    is substantial evidence that Gill could have reasonably thought Woo-
    drum knew AMFM's view towards unionization and accurately repre-
    sented that view with the acquiescence of AMFM managers.
    III.
    For the foregoing reasons, the NLRB findings are supported by
    substantial evidence. The NLRB petition to enforce is
    GRANTED.
    10
    

Document Info

Docket Number: 95-1323

Filed Date: 6/20/1996

Precedential Status: Non-Precedential

Modified Date: 4/18/2021

Authorities (19)

National Labor Relations Board v. Preston Feed Corporation , 309 F.2d 346 ( 1962 )

standard-coosa-thatcher-carpet-yarn-division-inc-v-national-labor , 691 F.2d 1133 ( 1982 )

National Labor Relations Board v. United Brass Works, Inc. , 287 F.2d 689 ( 1961 )

Benson Veneer Company, Inc. v. National Labor Relations ... , 398 F.2d 998 ( 1968 )

National Labor Relations Board v. Daniel Construction ... , 731 F.2d 191 ( 1984 )

Southern Maryland Hospital Center v. National Labor ... , 801 F.2d 666 ( 1986 )

National Labor Relations Board v. Low Kit Mining Company, a ... , 3 F.3d 720 ( 1993 )

American Thread Company v. National Labor Relations Board , 631 F.2d 316 ( 1980 )

National Labor Relations Board v. Huntington Hospital, Inc. , 550 F.2d 921 ( 1977 )

National Labor Relations Board v. Hospitality Motor Inn, ... , 667 F.2d 562 ( 1982 )

the-procter-gamble-manufacturing-company-port-ivory-new-york-plant , 658 F.2d 968 ( 1981 )

National Labor Relations Board v. P. B. And S. Chemical ... , 567 F.2d 1263 ( 1977 )

j-p-stevens-co-inc-v-national-labor-relations-board-amalgamated , 668 F.2d 767 ( 1982 )

National Labor Relations Board v. Nueva Engineering, Inc. , 761 F.2d 961 ( 1985 )

National Labor Relations Board v. Texas Independent Oil ... , 232 F.2d 447 ( 1956 )

National Labor Relations Board v. Shelby Memorial Hospital ... , 1 F.3d 550 ( 1993 )

Universal Camera Corp. v. National Labor Relations Board , 71 S. Ct. 456 ( 1951 )

Director, Office of Workers' Compensation Programs v. ... , 114 S. Ct. 2251 ( 1994 )

National Labor Relations Board v. Transportation Management ... , 103 S. Ct. 2469 ( 1983 )

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