N.L.R.B. v. Shelby Memorial Hosp. Ass'n

• Decision Date: 02 August 1993
• Docket Number: 92-2368,Nos. 92-1285,s. 92-1285
• Parties: 143 L.R.R.M. (BNA) 3062, 126 Lab.Cas. P 10,839 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHELBY MEMORIAL HOSPITAL ASSOCIATION, d.b.a. Shelby Memorial Home, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 550

1 F.3d 550

143 L.R.R.M. (BNA) 3062, 126 Lab.Cas. P 10,839

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHELBY MEMORIAL HOSPITAL ASSOCIATION, d.b.a. Shelby Memorial Home, Respondent.

Nos. 92-1285, 92-2368.

United States Court of Appeals Seventh Circuit.

Argued Dec. 2, 1992.

Decided Aug. 2, 1993.

Elizabeth Kinney, N.L.R.B., Chicago, IL, Aileen A. Armstrong, Peter D. Winkler, Vincent Falvo (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, Joseph H. Solien, N.L.R.B., St. Louis, MO, for petitioner.

Brian J. Fahey, Mark D. Nelson, Keck, Mahin & Cate, Chicago, IL, Joseph A. Yocum (argued), Evansville, IN, for respondent.

Before MANION and KANNE, Circuit Judges, and WILL, Senior Circuit Judge. ^*

KANNE, Circuit Judge.

The National Labor Relations Board (NLRB or Board) seeks enforcement of two orders against Shelby Memorial Hospital Association, doing business as Shelby Memorial Home (Home). The cases in which the orders issued were consolidated for disposition by this court. For the reasons that follow, we grant enforcement of both orders.

I. Background

Shelby Memorial Hospital operates Shelby Memorial Home, a skilled nursing home in Shelbyville, Illinois. In the main, the facility's employees consist of registered nurses (RNs), licensed practical nurses (LPNs), and certified nurse's aides (CNAs). These individuals are classified as either full-time, part-time, or on-call employees. The twenty-four hour work day at the Home is divided into three shifts. ¹ An administrator, director of nursing, maintenance supervisor, and various department heads constitute the Home's supervisory staff.

In early summer 1990, nurses at the Home began a union drive. The Home unsuccessfully opposed the union. The first case heard by the Board arose when, in July 1990, an affiliate of the International Brotherhood of Teamsters and Home employee LPN Michelle Sands filed charges of unfair labor practices against the Home. From April 1-3, 1991, a NLRB administrative law judge (ALJ) conducted hearings on the consolidated cases stemming from these charges. The ALJ issued a decision on July 15, finding that numerous actions of the Home in response to the union organizing campaign violated Sec. 8(a)(1), (3), and (4) of the National Labor Relations Act (NLRA or Act), codified at 29 U.S.C. Sec. 158(a)(1), (3), and (4). ² A three-member panel of the NLRB affirmed the ALJ's findings and conclusions, and adopted his recommended order. ³ We refer to this order as the "first order." The Board filed an application for enforcement in this court on February 5, 1992; a week later, the Home filed a timely answer.

In a separate case, the Teamsters affiliate filed unfair labor practice charges against the Home based specifically on its treatment of LPN Sands. The matter was heard before an ALJ on October 17, 1991. The ALJ found that the Home's treatment of Sands violated Sec. 158(a)(1), (3), and (4). A panel of the Board affirmed the ALJ's determinations and adopted his recommended order. ⁴ We refer to this order as the "second order." The Board filed an application for enforcement in this court on June 10, and the Home made a timely answer. On April 15, this court issued an order consolidating the enforcement applications for the first and second orders.

II. Standard of Review

We have jurisdiction to consider the Board's petitions for enforcement under 29 U.S.C. Sec. 160(e), which also governs our standard of review. "We must uphold the Board's determination if its factual findings are supported by substantial evidence in the record as a whole and its legal conclusions have a reasonable basis in the law." NLRB v. Augusta Bakery Corporation, 957 F.2d 1467, 1471 (7th Cir.1992). See also United States Marine Corporation v. NLRB, 944 F.2d 1305, 1313-14 (7th Cir.1991) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992). Substantial evidence "means such relevant evidence that a reasonable mind might accept as adequate to support" the Board's determination. Universal Camera Corporation v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). See also Roadmaster Corporation v. NLRB, 874 F.2d 448, 452 (7th Cir.1989).

The narrow scope of our review "does not allow us to dabble in fact-finding, and we may not displace reasonable determinations simply because we would have come to a different conclusion if we reviewed the case de novo." NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th Cir.1991). See also Lapham-Hickey Steel Corporation v. NLRB, 904 F.2d 1180, 1184 (7th Cir.1990). Accordingly, we must uphold the Board's legal conclusions unless they are irrational or inconsistent with the National Labor Relations Act. Aqua-Chem, Inc., Cleaver-Brooks Division v. NLRB, 910 F.2d 1487, 1490 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2871, 115 L.Ed.2d 1037 (1991). Moreover, we will not disturb the Board's remedial order "unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Virginia Electric & Power Company v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943). See also Fibreboard Paper Products Corporation v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964).

III. Analysis

The Home argues that several of the Board's findings should not be enforced because they are not supported by substantial evidence in the record as a whole. In short, the Home insists that while it opposed the union, its actions with respect to individual employees were motivated by financial concerns at a time when the facility was losing money. We address the Home's arguments in roughly the same order they are raised in the briefs, beginning with the first order.

A. The First Order

1. Affirmative Remedies

As part of its benefits program for nurses, the Home offered tuition assistance to CNAs who desired to attend nursing school. Under the arrangement, the Home would pay approximately three-quarters of a CNA's tuition in exchange for that individual's promise to work for the Home for two years following graduation. On June 10, 1990, Home's Director of Nursing, Joyce Turpin, informed CNAs Karen Endsley and Stewart Edersheim that they had been accepted into Home's tuition assistance program.

In late June, three employees of the Home contacted the International Brotherhood of Teamsters to inquire about organizing a union. A meeting between Home employees and a Teamsters representative was scheduled for July 5 at a local public park. On June 25, Nursing Director Turpin told CNA Edersheim that the Home would be unable to send him and CNA Endsley to nursing school because to do so could be construed as trying to influence their votes on the union. Turpin added that previously scheduled wage increases for the two CNAs had been postponed for the same reason. This action ran counter to the Home's policy, since 1989, of granting a raise on an employee's anniversary date following a satisfactory job evaluation. ⁵ At the hearing before the ALJ, LPN Lisa Standefer testified that she overheard the conversation between Turpin and Edersheim, and that Turpin had said tuition assistance and wage increases would be "considered a bribe." ⁶

Edersheim and Endsley were among the Home's employees who attended the July 5 union meeting, and both signed union authorization cards. On July 10, the Teamsters Union filed with the NLRB a petition for a union representation election at the Home. On July 30, CNA Endsley asked Nursing Director Turpin about her raise, which had been due the previous March, as well as about the Home's prior commitment to assist her with nursing school tuition. Turpin responded that the raise and assistance had been "put on hold because of the union." Endsley started nursing school the following September, paying her own way. ⁷ Also in September, Edersheim spoke with Home Administrator Albert Wimer and was told that he could not receive tuition assistance because it would be viewed as an attempt to influence his vote in the union election. In October, Edersheim quit. The next month, the Home granted raises retroactive to each employee's starting date, although some employees, including Edersheim and LPN Feldpouch, never received one.

On the basis of these facts, the Board found that the Home violated Sec. 158(a)(1) by informing CNAs Edersheim and Endsley that their annual raises were being withheld, and the offers of tuition assistance rescinded, because of their union activities. The Board noted that it has found a violation of the NLRA where an employer refuses to follow an established practice of assisting employees in attending seminars or receiving job training because of the employees' union activities, citing St. Francis Hospital, 1982 WL 24751 (1982), enforced, 729 F.2d 844 (D.C.Cir.1984), and The Norwalk Hospital, 1979 WL 9968 (1979). The order adopted by the Board requires the Home to reimburse Endsley for the cost (including interest) of attending nursing school to the extent other employees were reimbursed under the tuition assistance program. In addition, the Home must pay Edersheim the annual raise he did not receive (also including interest). The Home argues that these affirmative remedies are inappropriate.

Congress has charged the Board with "the task of devising remedies to effectuate the policies of the Act." NLRB v. Seven-Up Bottling Company, 344 U.S. 344, 346, 73 S.Ct. 287, 289, 97 L.Ed. 377 (1953). Accordingly, "[i]t is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged." International Association of Machinists v. NLRB, 311 U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50 (1940). See also NLRB v. Gissel Packing Company, 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 1939 n. 32, 23 L.Ed.2d 547 (1969). The Board's authority to fashion remedies "is a broad discretionary one, subject to limited judicial...