1621 Route 22 W. Operating Co. v. Nat'l Labor Relations Bd.
| Decision Date | 14 March 2018 |
| Docket Number | No. 12-1031,No. 12-1505,No. 16-3212,No. 16-3400,12-1031,12-1505,16-3212,16-3400 |
| Parties | 1621 ROUTE 22 WEST OPERATING COMPANY, LLC d/b/a SOMERSET VALLEY REHABILITATION AND NURSING CENTER, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent 1199 SEIU UNITED HEALTHCARE WORKERS EAST, NEW JERSEY REGION, Intervenor NATIONAL LABOR RELATIONS BOARD, Petitioner 1199 SEIU UNITED HEALTHCARE WORKERS EAST, NEW JERSEY REGION, Intervenor v. 1621 ROUTE 22 WEST OPERATING COMPANY, LLC, d/b/a SOMERSET VALLEY REHABILITATION AND NURSING CENTER, Respondent 1621 ROUTE 22 WEST OPERATING COMPANY, LLC d/b/a SOMERSET VALLEY REHABILITATION AND NURSING CENTER, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent *1199 SEIU UNITED HEALTHCARE WORKERS EAST, Intervenor *(Pursuant to the Clerk's Order dated 8/25/16) NATIONAL LABOR RELATIONS BOARD, Petitioner *1199 SEIU UNITED HEALTHCARE WORKERS EAST, InterVenor v. 1621 ROUTE 22 WEST OPERATING COMPANY, LLC d/b/a SOMERSET VALLEY REHABILITATION AND NURSING CENTER, Respondent *(Pursuant to the Clerk's Order dated 8/25/16) |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Applications for Review and Enforcement of Orders of the National Labor Relations Board
Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges
Rosemary Alito (ARGUED)
George P. Barbatsuly
Meghan T. Meade
K&L Gates LLP
One Newark Center, 10th Floor
Newark, New Jersey 07102
Jonathan E. Kaplan
Tanja L. Thompson
Littler Mendelson
3725 Champion Hills Drive
Suite 3000
Memphis, TN 38125
Counsel for Petitioner/Cross-Respondent
Linda Dreeben
Jill A. Griffin
Elizabeth A. Heaney
Dexter E. Sutton, Sr.
David Casserly (ARGUED)
National Labor Relations Board
1015 Half Street, SE
Washington, DC 20570
Counsel for Respondent/Cross-Petitioner
Patrick J. Walsh (ARGUED)
William S. Massey
Katherine H. Hansen
Gladstein Reif & Meginniss, LLP
817 Broadway, 6th Floor
New York, NY 10003
Counsel for Intervenor-Respondent
Before us are petitions to review or enforce two orders of the National Labor Relations Board ("NLRB" or "Board") related to unionization activities at a New Jersey nursing home. The orders pertain, respectively, to the certification of the employees' union and the employer's decision to terminate a group of nurses following their unionization. For the reasons that follow, we will deny the petitions for review and enforce both orders.
We write solely for the parties and recount only the facts relevant to our disposition. Petitioner 1621 Route 22 West Operating Company, LLC ("Somerset") operates a New Jersey nursing home. On July 22, 2010, after being contacted by Somerset employees, intervenor 1199 SEIU United Healthcare Workers East (the "Union") petitioned the NLRB for authorization to serve as the employees' collectivebargaining representative.1 At this time, Somerset employed, inter alia, registered nurses ("RNs") and licensed practical nurses ("LPNs"). An election to approve the Union was scheduled for September 2, 2010.
As part of its organizing campaign, the Union distributed a flyer featuring the words "Our Opportunity to Vote Yes is Here!" and a photograph of Somerset employees captioned with "At Somerset We're Voting Yes for 1199SEIU!" Joint Appendix ("J.A.") I2 666-68. The flyer also included the images and names of approximately forty employees appearing alongside individual statements in support of the Union.
In order to obtain content for the flyer, organizer Brian Walsh contacted employees, described the flyer, and requested that they sign a release form. The release form, titled as such, authorized the Union to use employee photographs and statements in campaign materials and required the signatures of the employee and a witness. The form also contained two prompts: first, ; and second, E.g., J.A. I 669. Nowhere did the form ask whether the employee supported the Union or how the employee intended to vote. Forty-nine employees signed the release form, many ofwhom answered the prompts. Walsh photographed the employees and recorded several testimonials for a campaign video.
Many of the statements on the flyer attributed to an employee do not replicate the employee's response on the release form he or she signed.3 Jillian Jacques, a Union supporter who signed seventeen release forms as a witness, admitted that she did not actually witness the execution of each form and that she fabricated some employees' answers to the form's prompts. Jacques, however, claims to have spoken with most of the employees before completing the form in their absence.
The election took place in a Somerset conference room. It was supervised by an NLRB agent and an observer from Somerset and the Union. Employees voted behind a cardboard, NLRB-approved, table-top voting booth which shields voters' lower arms and hands.4 The booth was easily displaced and its position changed throughout the day as employees bumped it. Some employees testified that parts of their bodies were visible or that they thought that they could be observed voting, and Somerset's observer stated that she was able to see voters' hands. Neither observer, however, objected to the use of the voting booth.
While polls were open, Walsh and another organizer text messaged and telephoned several employees to remind them to vote. Although some employeesreceived a text message or telephone call before having cast a ballot, the Board found that no employee was contacted by a Union official while standing in line to vote.
Employees voted in favor of the Union 38-28, with five challenged votes. Subsequently, Somerset filed fourteen objections to the election and petitioned the NLRB to set aside the results.
Following a hearing, an Administrative Law Judge ("ALJ") recommended that the NLRB overrule all of Somerset's objections. On August 26, 2011, the NLRB adopted the ALJ's findings and certified the Union as the exclusive collective-bargaining representative of Somerset employees. 1621 Route 22 W. Operating Co., 357 N.L.R.B. 736 (2011). Mark Pearce, one of the three Board members assigned to the panel hearing the case, was recused and did not participate in the Board's decision.
Somerset filed a motion for reconsideration, arguing in part that Craig Becker, another panel member, should have recused himself from the case. The Board denied Somerset's motion.
While the objection proceedings were pending, the Union asked Somerset to begin bargaining. Somerset refused, contending that the Union's request was invalid, and ignored a second request from the Union.
The NLRB's acting general counsel ("AGC") filed a complaint alleging that Somerset committed unfair labor practices in violation of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151, et seq. In its answer to the complaint Somerset reserved the right to challenge the Union's certification in the event that the Board denied Somerset's then-pending motion for reconsideration.
On December 30, 2011, the Board issued an order finding that Somerset violated NLRA § 8(a)(1) and (5) by refusing to recognize, bargain with, and provide information to the Union. 1621 Route 22 W. Operating Co., LLC, 357 N.L.R.B. 1866 (2011) (the "Certification Order").5 Somerset filed a petition for review in this Court, and the NLRB filed a cross-petition to enforce the order. 1621 Route 22 W. Operating Co., LLC v. NLRB, 3d Cir. Nos. 12-1031, 12-1505 ("Somerset I").
In 2009, prior to the unionization campaign, the New Jersey Department of Health ("NJDOH") conducted its annual review of Somerset and returned a critical report. The report cited several deficiencies, including instances of poor patient treatment. At this time, a Somerset administrator "form[ed] the opinion" that Somerset's patients required a greater level of care than its staff of LPNs was able to provide. J.A. III 457-58.
The NJDOH issued another critical report following its 2010 review, conducted after the Union's election. Somerset did not increase employee discipline or training in response to the critical reports. Rather, Somerset decided in May 2011 to employ RNs exclusively — who, by virtue of training and licensing, are able to offer patients more complex care — and "reposition" itself as an "all-subacute facility." Petitioner's Br. III 12. Somerset began to fill open nursing positions with RNs. Eventually the two remaining LPNs, Irene D'Ovidio and Maharanie Mangal, were terminated.
According to Somerset, it decided to employ only RNs in response to the critical NJDOH reports, to improve patient care, and because relying on RNs was a growing healthcare trend. Somerset maintains that, after eliminating the LPN position, it began to market itself exclusively to short-term subacute patients, for whom RNs are better equipped to provide care.
The Board and the Union paint a different picture. They argue that Somerset's patient population, and the services provided by its nursing staff, did not appreciably change after Somerset eliminated the LPNs. Moreover, according to the cross-petitioners: no research or evidence underlay Somerset's determination that RNs would improve the patient care in its facility; at the time of the administrative hearing, no other New Jersey facility operated by Somerset's managing companies employed only RNs; and contrary to Somerset's characterizations and stated goals, Somerset's reputation and level of care have suffered since eliminating LPNs.
By letter dated January 30, 2012, the Union requested access to Somerset's facility to observe the employees' working conditions. Somerset ignored this request. The Union filed a series of unfair labor practice charges which prompted the AGC to issue complaints against Somerset.
In January 2013, following a hearing, the ALJ found that Somerset committed the violations...
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