Torrington Extend-A-Care Employee Ass'n v. N.L.R.B., EXTEND-A-CARE

• Decision Date: 28 February 1994
• Docket Number: Nos. 2135,2136 and 2137,D,EXTEND-A-CARE,AFL-CI,CL,P,s. 2135
• Citation: 17 F.3d 580
• Parties: 145 L.R.R.M. (BNA) 2648, 62 USLW 2595, 127 Lab.Cas. P 11,035 TORRINGTONEMPLOYEE ASSOCIATION, A/W New England Health Care Employees, District 1199, National Union of Hospital and Health Care Employees, SEIU,etitioner, Beverly California Corporation, formerly known as Beverly Enterprises, its operating divisions, wholly owned subsidiaries, and individual facilities, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, U.F.C.W. Locals 73A and 917, Intervenors. ockets 93-4016, 93-4038 and 93-4050.
• Court: U.S. Court of Appeals — Second Circuit

Page 580

17 F.3d 580

145 L.R.R.M. (BNA) 2648, 62 USLW 2595,

127 Lab.Cas. P 11,035

TORRINGTON EXTEND-A-CARE EMPLOYEE ASSOCIATION, A/W New England Health Care Employees, District 1199 National Union of Hospital and Health Care Employees, SEIU, AFL-CIO CLC, Petitioner Beverly California Corporation, formerly known as Beverly Enterprises, its operating divisions, wholly owned subsidiaries, and individual facilities Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, U.F.C.W. Locals 73A and 917, Intervenors.

Nos. 2135, 2136 and 2137, Dockets 93-4016, 93-4038 and 93-4050.

United States Court of Appeals, Second Circuit.

Argued Aug. 12, 1993.

Decided Feb. 28, 1994.

James B. Coppes, Washington, D.C., (Jonathan P. Hiatt, Washington, D.C., of counsel), for Petitioner.

Warren M. Davison, Baltimore, Maryland, (Roger Darius Meade, Thomas P. Dowd, Littler, Mendelson, Fastiff & Tichy, Baltimore, Maryland, of counsel), for Petitioner-Cross-Respondent.

Robert J. Englehart, National Labor Relations Board, Washington, D.C. (Jerry M. Hunter, General Counsel, Yvonne T. Dixon, Acting Associate General Counsel, Nicholas E. Karatinos, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Linda Dreeben, Vincent J. Falvo, Jr., National Labor Relations Board, Washington, D.C., of counsel), for Respondent-Cross-Petitioner.

Before WINTER, MINER and WALKER, Circuit Judges.

WINTER, Circuit Judge:

The National Labor Relations Board concluded that petitioner-cross-respondent Beverly California Corporation ("Beverly"), a nationwide company that owns and operates 985 nursing homes, committed numerous unfair labor practices at various facilities between July 1986 and May 1988. Specifically, the Board concluded that Beverly committed over 130 violations of Section 8(a)(1), (3) and (5) of the National Labor Relations Act (the "Act"), 29 U.S.C. Sec. 158(a)(1), (3), and (5) (1988), at 33 of its facilities.

The consolidated unfair labor practice charges were heard by Administrative Law Judge ("ALJ") Martin J. Linsky. The Board affirmed the ALJ's decision with only minor modifications that will be detailed as necessary. The Board's order requires, inter alia: that Beverly make whole certain employees affected by the unfair labor practices; that Beverly bargain in good faith with its employees' bargaining representatives and provide relevant information when requested; and that Beverly post the usual notices at sites where unfair labor practices occurred and cease and desist from engaging in unfair labor practices at those facilities. In addition to the remedial provisions that concern the thirty-three facilities at which unfair labor practices occurred, the Board issued corporate-wide posting and cease and desist orders applicable to all of Beverly's nursing homes.

Beverly has petitioned for review of nineteen of the Board's findings of unfair labor practices and for review of the nationwide posting and cease and desist orders. Torrington Extend-A-Care Employee Association ("Torrington Association") has petitioned for review of the Board's refusal to compel disclosure of certain financial information requested by it in the course of bargaining sessions with Beverly.

Beverly's petition for review of the scope of the nationwide order is granted, and we deny enforcement of that order. Beverly's petition to review nineteen of the Board's individual unfair labor practice findings is

granted as to three findings. Enforcement is granted as to the remaining unfair labor practice findings. Torrington Association's petition for review of the Board's refusal to order disclosure of financial information is denied.

I. THE CORPORATE-WIDE SCOPE OF THE ORDER

Beverly challenges the Board's order insofar as it directs it to post the usual notice at all of its facilities nationwide and to cease and desist from unfair labor practices at all of those facilities.

Beverly is a nationwide operation that owns and operates 985 nursing homes and has close to 100,000 employees. The Board found that Beverly committed over 130 violations of the Act at 33 homes. At the time of the violations, Beverly divided its operations into five divisions: Eastern, Central, Southern, Western, and Texas. At least one violation was found in each of its operating divisions, although the bulk of the violations occurred in Pennsylvania and Michigan, which were at the pertinent time part of the Eastern Division. Each division was overseen by a divisional headquarters, which typically was staffed by ten to twelve employees, including a "labor relations supervisor" and several "human resources professionals" who assisted individual facilities with employment matters and union campaigns. ¹

Individual facilities typically were managed by an administrator, an assistant administrator, a director of nursing, an assistant director of nursing, and several other lower-level administrators. The facilities were staffed by registered nurses, licensed practical nurses, licensed vocational nurses, nursing assistants, dietary aides, and laundry aides. These latter employees are represented by unions at about 160 of Beverly's facilities.

The NLRB's order commands Beverly to post notices on a nationwide basis and to refrain from unfair labor practices at any of its facilities. Beverly contends that the evidence in this case does not warrant a corporate-wide remedy. We agree.

The Board has discretion in fashioning orders so long as they "effectuate the policies of [the Act]." 29 U.S.C. Sec. 160(c); Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964). The Board's orders must be remedial, however, rather than punitive. Manhattan Eye Ear & Throat Hosp. v. NLRB, 942 F.2d 151, 156-57 (2d Cir.1991). Relief "must be sufficiently tailored to expunge only the actual, and not merely speculative, consequences of the unfair labor practices." Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900, 104 S.Ct. 2803, 2813, 81 L.Ed.2d 732 (1984); Manhattan Eye Ear & Throat Hosp., 942 F.2d at 157.

A corporate-wide order is properly remedial where either the evidence supports an inference that the employer will commit further unlawful acts at a substantial number of other sites or the record shows that employees at other sites are aware of the unfair labor practices and may be deterred by them from engaging in protected activities. See NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 960-61 (2d Cir.1988), cert. denied, 490 U.S. 1108, 109 S.Ct. 3162, 104 L.Ed.2d 1025 (1989). In S.E. Nichols, we emphasized the numerous unfair labor practices at one of the company's stores, a fifteen-year history of violations of the Act, the geographic proximity of the stores, transfers of employees between stores, the centralized control over the firm's labor policy by the company's president, and the personal involvement of the company's president and a division-level manager in spreading threats of unfair labor practices. Id. at 961. Based on these facts, we concluded that there was substantial evidence of a "conscious corporate-wide policy to coerce company employees in the exercise of their right to join or form labor unions." Id. We therefore enforced an order requiring notice at eight stores in upstate New York and Ohio--the area under the supervision of one district supervisor who was behind a number of the unfair labor practices. Id. The record in the instant matter does not support a similar order.

We turn first to the question of whether the record supports an inference that unlawful acts are reasonably probable at a substantial number of Beverly's nursing homes that are not the subject of unfair labor practice findings. We believe that it does not. Beverly is, to be sure, opposed to the unionization of its employees, but it has the right to take that position. The order in question thus must be justified, if at all, by the nature of Beverly's past conduct.

Although the Board emphasized that Beverly committed over 130 violations at 33 sites, the evidentiary weight of these statistics is substantially diminished when related to the size of Beverly and the types of violations found. At pertinent times, Beverly had nearly 1000 facilities including 160 sites with collective bargaining agreements, and 100,000 employees. The Board also relied upon the fact that "27 employees at 11 facilities were unlawfully discharged, refused rehire, or removed from their jobs for their activities on behalf of the Union." Beverly Cal. Corp., 310 N.L.R.B. No. 37, slip op. at 19 (Jan. 29, 1993). However, 17 of these employment decisions involved a single incident at a single nursing home, the Fayette Health Care Center. Moreover, Beverly reinstated and gave full backpay to the 17 affected employees in less than four months after the incidents, and the person responsible for the 17 unlawful employment decisions is no longer with Beverly.

The other unfair labor practices were not the kind of hallmark violations found in cases enforcing expanded remedial orders. Cf. S.E. Nichols, 862 F.2d at 960-61; United Steelworkers of Am. v. NLRB, 646 F.2d 616, 639-40 (D.C.Cir.1981); J.P. Stevens & Co., Inc. v. NLRB, 380 F.2d 292, 304 (2d Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (1967). Moreover, the proof in many cases, while sufficient to support the decision, was ambiguous, and contrary decisions would have been as sustainable. Non-hallmark violations at 3% of a company's facilities does not show an anti-union animus amounting to a proclivity to violate the Act.

Nor was there a showing that the unfair labor practices stemmed from a corporate-wide labor policy. See S.E. Nichols, 862 F.2d at 961. The evidence indicated that most employment actions were handled at the facility level and never rose above the division level. In fact, the only evidence the Board cited of a national corporate headquarters' connection to unfair labor...