Pleasantview Nursing Home, Inc. v. N.L.R.B.

• Decision Date: 10 December 2003
• Docket Number: No. 01-2533.,No. 01-2288.,01-2288.,01-2533.
• Parties: PLEASANTVIEW NURSING HOME, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Textile Processors, Service Trades, Health Care, Professional and Technical Employees' Union, Local No. 1, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

351 F.3d 747

PLEASANTVIEW NURSING HOME, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Textile Processors, Service Trades, Health Care, Professional and Technical Employees' Union, Local No. 1, Intervenor.

No. 01-2288.

No. 01-2533.

United States Court of Appeals, Sixth Circuit.

Argued: March 25, 2003.

Decided and Filed: December 10, 2003. Pursuant to Sixth Circuit Rule 206.

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ARGUED: Maynard A. Buck, BENESCH, FRIEDLANDER, COPLAN & ARONOFF, Cleveland, Ohio, for Petitioner.

Sharon I. Block, NATIONAL LABOR RELATIONS BOARD, Washington, DC, for Respondent.

ON BRIEF: Maynard A. Buck, Ann E. Knuth, BENESCH, FRIEDLANDER, COPLAN & ARONOFF, Cleveland, Ohio, for Petitioner.

Sharon I. Block, Aileen A. Armstrong, Bridget O'Connor, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent.

Before BOGGS, Chief Judge; SILER, Circuit Judge; and STEEH, District Judge.^*

OPINION

BOGGS, Chief Judge.

Petitioner Pleasantview Nursing Home, Inc. ("Pleasantview"), operated a nursing home organized by the Textile Processors, Service Trades, Health Care, Professional and Technological Employees International Union, Local No. 1 ("Union"). After the 1996 negotiations between Pleasantview and the Union for a new collective bargaining agreement ("CBA") broke down, Pleasantview declared an impasse and unilaterally imposed its final offer. The National Labor Relations Board ("NLRB"), acting on a Union charge, found Pleasantview to have engaged in a series of unfair labor practices in violation of the National Labor Relations Act ("NLRA"): breach of the requirement in previous CBAs to remit Union initiation fees; a unilateral increase in wages of some employees during the final negotiations; refusal to negotiate holiday and pension buy-backs in good faith; insistence to an impasse on a change in the initiation fee provision; and unilateral implementation of Pleasantview's final offer without a valid impasse. Pleasantview petitions this court for review and the NLRB cross-petitions for enforcement of its order to remedy these alleged unfair labor practices. We enforce the order in part and grant the petition for review in part.

I

Pleasantview operates a nursing home on the west side of Cleveland. In 1984, the Union was certified as the collective bargaining representative of Pleasantview's orderlies and other aides. The initial CBA between Pleasantview and the Union went into effect in June 1985. This and all subsequent CBAs contained a union-shop provision requiring all employees covered by the CBA to join the Union and a collection clause requiring Pleasantview to collect the Union's initiation fees from the employees' pay each month. Moreover, all CBAs contained a zipper clause stating that no amendment is effective unless executed in writing by both parties. Nevertheless, Pleasantview and the Union reached an informal understanding not to enforce the collection clause because doing so would place Pleasantview, at the time the only organized nursing home in the area, at a competitive disadvantage. This informal understanding was observed for ten years until, in June 1995, the Union notified Pleasantview that it had organized another area nursing home, Alpha Health Center ("Alpha"). At this point, Pleasantview began collecting the initiation fees for new hires. However, when Pleasantview learned that while Alpha had indeed been organized, there was no CBA requiring Alpha to collect initiation fees, and there would be no such CBA for the foreseeable future, Pleasantview once again ceased collecting the initiation fees and refunded those initiation fees still in Pleasantview's possession.

On April 25, 1996, the Union and Pleasantview began negotiations for a new CBA covering the seventy-eight employees represented by the Union. As Pleasantview was facing a serious labor shortage, one of its aims in these negotiations was to provide for a significant increase in the pay of the represented employees. Pleasantview's initial proposal was to increase hourly wages and to finance this increase partially by the elimination of three paid holidays and the company contribution to Union-managed pension and disability funds. In return, employees would receive access to employer-sponsored investment and insurance plans. Pleasantview also wished to be freed, explicitly, of its obligation to collect initiation fees until another area nursing home was required to do so. Alternatively, Pleasantview offered to collect the initiation fees but only if the union-shop clause was replaced by a maintenance-of-membership clause requiring current members to remain in the Union but giving new hires the option not to join. On May 31, the last written CBA expired, but Pleasantview and the Union orally agreed to extend the CBA while negotiations continued and to apply the new CBA, when agreed to, retroactively to this date. Subsequently, Pleasantview informed the Union that, because of the labor shortage, it was going to increase pay unilaterally for new hires while negotiations were proceeding. According to Pleasantview, the Union negotiator nodded in response. On July 6, Pleasantview did increase the starting hourly wage for new employees and recently hired employees whose wages were still below the new starting wage. This change affected six employees.

On September 17, after twelve negotiation sessions, Pleasantview, at the suggestion of a federal mediator involved in the negotiations, made a final offer to the Union incorporating the changes to the CBA that Pleasantview sought. The Union rejected this offer and declined to present it to the Union membership for a vote. At this point, Pleasantview declared an impasse and stated its intention to implement its final offer unilaterally on September 22. In response, the Union called a strike for that date and filed an unfair labor practices charge with the NLRB. On September 19, Pleasantview wrote a letter to its represented employees explaining that it would implement its final offer and informing employees that, should they not wish to participate in the strike, they could avoid union fines by withdrawing from the Union. On September 22, the Union struck and began picketing Pleasantview. However, a large majority of represented Pleasantview employees chose to cross the picket line that consisted of three Pleasantview employees and several Union officials. The strike collapsed after one shift. By the time the strike collapsed, more than three-quarters of Pleasantview's represented employees had informed Pleasantview of their withdrawal from the Union.

On April 30, 1997, the General Counsel of the NLRB, acting on the Union's charge, filed an unfair labor practices complaint against Pleasantview. On March 20, 1998, an NLRB Administrative Law Judge ("ALJ") concluded that Pleasantview had violated the NLRA by refusing to remit the initiation fees to the Union, unilaterally raising the wages of new and recently hired employees during the course of the negotiations, and by implementing its last offer without reaching a valid impasse. Pleasantview and the general counsel appealed to a three-judge panel of the NLRB. On August 27, 2001, this panel, over a partial dissent of the chairman of the NLRB, concluded that Pleasantview had violated the NLRA in the manner cited by the ALJ and also by insisting to impasse on the elimination of the initiation fees and by refusing to negotiate in good faith with respect to the buy-back of the pension and paid holiday provisions. 335 N.L.R.B. No. 77. The NLRB ordered Pleasantview to cease and desist from these practices, to rescind the imposition of its final offer, to make employees whole, and to reopen bargaining with the Union. Before this court now are Pleasantview's petition for review of the NLRB's order and the NLRB's cross-application for enforcement.

II

The NLRB has jurisdiction to prevent unfair labor practices. NLRA § 10(a), 29 U.S.C. § 160(a). This court has jurisdiction over petitions to review or enforce orders issued by the NLRB. NLRA § 10(e), 29 U.S.C. § 160(e). "We review the [NLRB's] conclusions of law de novo ... If the [NLRB] errs in determining the proper legal standard, we may refuse enforcement on the grounds that the order has no reasonable basis in law." NLRB v. Good Shepherd Home, 145 F.3d 814, 816 (6th Cir.1998) (quoting NLRB v. Pentre Elec., 998 F.2d 363, 368 (6th Cir. 1993)). We review the NLRB's factual findings under a deferential standard. "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." NLRA § 10(e), 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 493, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. St. Francis Healthcare Ctr., 212 F.3d 945, 951-52 (6th Cir.2000). "Evidence is substantial when it is adequate, in a reasonable mind, to uphold the [NLRB's] decision." St. Francis, 212 F.3d at 952. (Internal quotation omitted). However, even when reviewing factual questions, we will not serve "as a mere rubber stamp for the administrative agency." NLRB v. Cook Family Foods, 47 F.3d 809, 816 (6th Cir. 1995) (quoting YHA, Inc. v. NLRB, 2 F.3d 168, 172 (6th Cir.1993)).

The NLRA protects the right of workers to unionize and bargain collectively. "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing." NLRA § 7, 29 U.S.C. § 157. "[F]or an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" § 7 of the NLRA is an unfair labor practice. NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1). So is "refus[al] to bargain collectively with the representatives of his employees." NLRA § 8(a)(5), 29 U.S.C § 158(a)(5).

[T]o bargain collectively is the performance of the mutual...