Beverly Health and Rehabilitation v. N.L.R.B.
| Decision Date | 25 July 2002 |
| Docket Number | No. 00-2507.,No. 00-2397.,00-2397.,00-2507. |
| Parties | BEVERLY HEALTH AND REHABILITATION SERVICES, INC., et al., Petitioners/Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas P. Dowd (argued and briefed), Littler Mendelson, Baltimore, MD, for Petitioners Cross-Respondents.
Aileen A. Armstrong (briefed), Dep.Asso.Gen.Counsel, Charles P. Donnelly, Jr. (briefed), Usha Dheenan (argued and briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent Cross-Petitioner.
James B. Coppess, AFL-CIO Legal Department, Washington, DC, Craig Becker (argued and briefed), Chicago, IL, for Intervenor.
Before: CLAY and GILMAN, Circuit Judges; HAYNES, District Judge.*
Beverly Health and Rehabilitation Services, and its wholly owned subsidiary Beverly Enterprises—Pennsylvania Inc., (collectively "Beverly Health") appeal the National Labor Relations Board's order finding that Beverly Health violated Sections 8(a)(1) and (5) of the National Labor Relations Act ("the Act") by unilaterally implementing disciplinary work rules, modifying work schedules, and altering the job duties of certain employees after the expiration of its collective bargaining agreement with the Union.
Acting on unfair labor practice charges filed by the Union, the National Labor Relations Board ("the Board") issued a complaint, alleging, in pertinent part, that Beverly Health violated Sections 8(a)(1) and (5) of the Act by maintaining disciplinary rules that were overly broad and tended to restrain, interfere with, and coerce employees in the exercise of their rights under Section 7 of the Act; suspending employee Oneita Say because she engaged in protected union activities; and refusing to bargain in good faith with the Union by unilaterally implementing revised disciplinary rules, work schedules, job descriptions, and duties.
After a hearing, an Administrative Law Judge ("ALJ") issued a decision finding merit in most of the Union's allegations. The Board affirmed the ALJ's findings and conclusions with minor modifications. Beverly Health filed a petition seeking review of only two aspects of the Board's order: (1) the finding that Beverly Health violated the Act by unilaterally changing the work schedules of certain employees and by unilaterally implementing new disciplinary rules; and (2) the finding that disciplinary rule 1.4 was unlawful. The Board filed a cross application for enforcement of the order. For the reasons set forth below, we DENY Beverly Health's petition for review and GRANT the Board's application for enforcement.
Beverly Health operates a number of nursing homes throughout Pennsylvania, including Caledonia Manor, Grandview Healthcare Center, and Beverly Manor of Lancaster ("Duke") facilities. Service Employees International Union, AFL CIO, CLC and its Locals 585 and 668 (collectively the "Union") represent separate bargaining units of service and maintenance employees units at Beverly Health's Pennsylvania facilities. At the Duke facility, the most recent collective-bargaining agreement ("CBA") covering those employees extended from December 20, 1991 to December 31, 1994. At the Grandview facility, the most recent contract ran from March 30, 1992, to December 31, 1994.
The management-rights clause of the parties' CBAs provided:
The Employer retains the exclusive right to manage the facility; to direct, control, and schedule its operations and the workforce and to make any and all decisions affecting the business, whether or not specifically mentioned herein. Such prerogatives, authority, and functions shall include but are not limited to the sole and exclusive right to:
a. Hire, promote, demote, layoff, assign, transfer, suspend, discharge or discipline associates for just cause;
b. Select and determine the number of its associates including the number assigned to any particular work;
c. To increase or decrease that number;
d. Direct and schedule the work force;
e. Determine the location and type of operation;
f. Determine and schedule when overtime shall be worked;
g. Install or remove equipment;
h. Determine the methods, procedures, materials, and operations to be utilized or to discontinue their performance by associates of the Employer and/or to contract the same;
i. Establish, increase or decrease the number of work shifts and their starting and/or ending times;
j. Transfer or relocate any or all of the operations of the business to any location or to discontinue such operations;
k. Determine the work classifications of associates and job description content l. Promulgate, post, and enforce reasonable rules and regulations, policies and procedures, governing the conduct and action of associates during the work hours;
m. Select supervisory associates; establish, determine content of, and implement such training programs;
n. Train associates, establish, determine content of, and implement such training programs.
o. Discontinue any department or branch;
p. Introduce new and improved methods of operations;
q. Establish, change, combine, or abolish job classifications, and determine job content and qualifications; and
r. Set standards of performance of the associates.
And in all respects carry out in addition, the ordinary and customary functions of management, except as specifically altered or modified by the terms of this Agreement.
The Union also represents a unit of licensed practical nurses ("LPNs") at Grandview. Although the Board certified the Union as the collective-bargaining representative of the LPNs unit for Board Case No. 6-RC-10978, Beverly Health has refused to bargain, contending that LPNs were supervisors as defined by Section 2(11) of the Act, and therefore, were not entitled to representation. After the close of the hearing in this case, but before the ALJ issued its opinion, the Court of Appeals for the District of Columbia Circuit enforced the Board's order requiring Beverly Health to bargain with the Union on behalf of the LPNs. At the time of the unfair labor practices at issue, the LPNs did not have a CBA.
In October of 1994, the parties commenced negotiations for successor service and maintenance agreements for the Duke and Grandview CBAs that were scheduled to expire on December 31, 1994. No agreement was reached by the parties by December 31, 1994. The parties extended all aspects of the contract until January 23, 1995, at which point the contracts terminated pursuant to a letter from Beverly Health stating that it would not extend the agreements. Beverly Health and the Union agreed to maintain the status quo during the post-January 23 bargaining time frame, as required by law. At the time of the CBA termination, the parties had not reached an impasse in negotiations.
While negotiations continued between the parties, Beverly's Labor Relations Manager, Ronald St. Cyr, sent a letter dated April 21, 1995 to the Union's chief negotiator, John Haer, to inform him that Beverly Health would modify and standardize its disciplinary policy at the union-represented facilities effective June 1, 1995. This letter also reflected that the changes would "remain in effect until such time as management determines that further changes are necessary." The new policy stated that failure to follow the new rules would result in discipline, up to and including discharge.
The newly instituted rule 1.4 provided that "refusing to cooperate in the investigation of any allegation of patient (resident) neglect or abuse or any other alleged violation of company rules, laws, or government regulations" would result in a suspension pending an investigation for discharge. Further, rule 1.6 imposed the same penalty for "making false or misleading work-related statements concerning the company, the facility, or fellow associates."
On April 27, 1995, at a negotiating session, Haer demanded that Beverly Health bargain over the new disciplinary rules and requested information regarding the existing policies. Beverly Health provided Haer with a copy of the existing policies, and informed him that the new policy was being implemented in all the nursing homes in the region. On May 18, 1995, Haer sent a letter to St. Cyr stating that the Union's position was that Beverly Health could not unilaterally modify work rules at union-represented facilities. St. Cyr responded that the modification of the disciplinary policies was permitted by the management-rights clause of the expired CBA, and, therefore, that Beverly Health was not required to bargain over the matter, stating:
Under our agreements, the substance of the disciplinary rules codes or conduct are at the discretion of management. Only disciplinary procedures (grievance-arbitration) have been the subject of negotiation and contract. This is affirmed by the management's right clause, the zipper clause, past practice, and usual practices of collective bargaining.
In a letter dated June 8, 1995, Haer repeated the Union's request to bargain over the new rules. In a letter dated June 23, 1995, St. Cyr responded that Beverly Health's position regarding the disciplinary rules remained unchanged. At the next bargaining session on July 24, 1995, St. Cyr advised the Union that the new disciplinary policy, including rules 1.4 and 1.6, had been implemented in all of Beverly Health's Pennsylvania facilities. Haer reiterated the Union's request to bargain over the new policy. Beverly Health again responded that they were not required to bargain over the matter.
The NLRB's General Counsel filed a complaint, contending that the implementation of the disciplinary policy violated Section 8(a)(5) of the Act at the Grandview and Duke facilities, where the CBAs had expired.
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