N.L.R.B. v. American Geri-Care, Inc.

• Decision Date: 23 December 1982
• Docket Number: No. 180,GERI-CAR,INC,D,180
• Citation: 697 F.2d 56
• Parties: 112 L.R.R.M. (BNA) 2529, 96 Lab.Cas. P 13,966 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN, Respondent. ocket 82-4053.
• Court: U.S. Court of Appeals — Second Circuit

Page 56

697 F.2d 56

112 L.R.R.M. (BNA) 2529, 96 Lab.Cas. P 13,966

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN GERI-CARE, INC., Respondent.

No. 180, Docket 82-4053.

United States Court of Appeals Second Circuit.

Argued Sept. 24, 1982.

Decided Dec. 23, 1982.

Jonathan Saperstein, N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., of counsel), for petitioner.

Morris Tuchman, New York City (Gluck & Tuchman, New York City, of counsel), for respondent.

Before FRIENDLY, MESKILL and CARDAMONE, Circuit Judges.

MESKILL, Circuit Judge:

The petitioner, National Labor Relations Board (Board), has submitted an application pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. Sec. 160(e) (1976) (NLRA), for enforcement of its September 30, 1980 order against the respondent, American Geri-Care, Inc. (the Company). Jurisdiction is properly conferred on this Court by Section 10(e) of the Act because the Board seeks enforcement of a final order in which the Company was found guilty of several unfair labor practices. We conclude that the Board's findings were supported by substantial evidence and therefore order that the decision of the NLRB be enforced under the terms outlined in the administrative decision.

Background

American Geri-Care is a New York corporation principally engaged in the business of providing health care, staffing and related services to various medical institutions in the greater New York City area. ¹ The Company derives substantial revenue by contracting to staff local nursing homes from its pool of registered nurses and related medical personnel. Under one such contract, the Company agreed to provide the Aischel Avraham Nursing Home in Brooklyn with thirteen registered nurses to service that institution during the 1979 fiscal year. The events giving rise to the Board's unfair labor practice findings each occurred at the Avraham facility.

The group of nurses assigned to the Avraham Home did not belong to a union when they commenced working at that institution. They were subsequently approached, however, by two rival unions who sought to enlist their support for unionization. On October 29, 1979, one of these unions, Local 144, Hotel, Hospital, Nursing Home and Allied Health Services Union, SEIU, AFL-CIO (Local 144), filed a representation petition on behalf of the unit of registered nurses employed by the Company at the Avraham facility. The rival union, Local 6, International Federation of Health Professionals, International Longshoreman's Association, AFL-CIO (Local 6), requested and was granted permission by the NLRB to participate in the union election. A closed ballot election was held on December 20, 1979, and Local 144 was narrowly defeated. ²

On December 28, 1979, Local 144 filed timely objections to conduct affecting the results of the election. Local 144 principally alleged that the Company had engaged in a broad range of unfair labor practices in an effort to defeat the union's election bid. The union requested that an administrative hearing be held to consider these charges and, for purposes of this appeal, two important rulings were made at that hearing. The Administrative Law Judge (ALJ) found that: (1) the Company had violated Sections 8(a)(1), (3) and (4) of the NLRA, 29 U.S.C. Sec. 158(a)(1), (3), (4), by harassing, discharging and failing to reinstate Shirley Anenburn because she had engaged in protected labor activity; and (2) the Company had violated Section 8(a)(1) of the NLRA by promising and granting its employees special benefits to induce them to vote against unionization. ³

The ALJ subsequently ordered that Shirley Anenburn be reinstated, with full back pay and seniority, to her former position as a registered nurse at the Avraham facility. He also ruled that a new election be held because the prior voting had been tainted by the Company's illegal promise of special benefits. In the Matter of American Geri-Care, NLRB, JD-(NY)-57-81 (June 15, 1981), reprinted in J.App. at 8. The Board affirmed the ALJ's findings and rulings. American Geri-Care, Inc., 258 N.L.R.B. 1116 (1981).

Discussion

A. Anenburn Incident

Shirley Anenburn was employed by the Company during most of 1979 as a registered nurse at the Avraham facility. ⁴ Anenburn actively supported Local 144 during the pre-election campaign. She signed an authorization card, collected cards from other nurses, and attended an organizational meeting sponsored by the union. Anenburn was subpoenaed to appear as a witness on behalf of Local 144 at an NLRB representation hearing that was held on November 15, 1979. ⁵ The parties concede that the Company was aware of Ms. Anenburn's pro-union sympathies.

Management's treatment of Ms. Anenburn took a decided turn after she appeared at the Board hearing on behalf of Local 144. On November 16, 1979, one day after she attended the representation hearing, the Company issued a warning notice to Anenburn citing her for tardiness. On the following day, November 17, 1979, management denied Anenburn's request for vacation leave even though she had been assured verbally that her application would be granted. Finally, Ms. Anenburn was discharged on November 21, 1979, purportedly because she abandoned a dying patient while on duty.

At the conclusion of the administrative proceedings, the ALJ reviewed these incidents and found that the Company took action against Ms. Anenburn not for prudent business reasons, but rather principally in retaliation for her support of Local 144. He cited American Geri-Care for violations of Sections 8(a)(1), (3) and (4) of the Act.

Sections 8(a)(1), (3) and (4) of the National Labor Relations Act provide in pertinent part that it shall be an unfair labor practice for an employer:

(1) to interfere with, restrain, or coerce employees in the exercise of [their Section 7 rights]; ⁶

....

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ...; [and]

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter.

Codified as amended at 29 U.S.C. Sec. 158(a)(1), (3) and (4) (1976).

Actions commenced under these provisions often raise difficult issues of fact, including the critical question of employer motivation for undertaking the acts complained of. Management typically argues, for example, that its decision to issue an employee warning notice was guided by prudent business judgment. The General Counsel and the aggrieved employee generally respond that the employer was motivated principally by anti-union animus when issuing the disputed citation and that the "business judgment" explanation is merely a pretense or sham.

The NLRA vests primary responsibility in the National Labor Relations Board to resolve these difficult questions of fact. See 29 U.S.C. Sec. 160(e) (1976). The Board is empowered to review the evidence presented in the administrative proceeding, to assess the credibility of witnesses, and ultimately to decide whether the claims of the employer or the employee are more persuasive. The Court's scope of review on petition for enforcement of an NLRB order is properly quite limited. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); NLRB v. Columbia University, 541 F.2d 922, 928 (2d Cir.1976). The Court will affirm the factfindings of the Board if there is "substantial evidence on the record considered as a whole, taking into account whatever in the record fairly detracts from its weight, but giving due regard to the Board's expertise." NLRB v. International Metal Specialties, Inc., 433 F.2d 870, 871 (2d Cir.1970), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971); see United Aircraft Corp. v. NLRB, 440 F.2d 85, 91 (2d Cir.1971).

We have also noted that the findings of the Board " 'cannot lightly be overturned,' " NLRB v. Advanced Business Forms Corp., 474 F.2d 457, 464 (2d Cir.1973), citing United Aircraft Corp. v. NLRB, 440 F.2d 85, 91 (2d Cir.1971), and NLRB v. Gladding Keystone Corp., 435 F.2d 129, 132 (2d Cir.1970), especially when these findings are based upon the Board's assessment of witness credibility. See NLRB v. Columbia University, 541 F.2d 922, 928 (2d Cir.1976); NLRB v. Dinion Coil Co., 201 F.2d 484, 490 (2d Cir.1952). Indeed, credibility findings made by the ALJ and accepted by the Board will not be overturned unless they are "hopelessly incredible" or they "flatly contradict" either the "law of nature" or "undisputed documentary testimony." NLRB v. Columbia University, 541 F.2d at 928; NLRB v. Dinion Coil Co., 201 F.2d at 490.

1. The Warning

On November 16, 1979, one day after she appeared at the representation hearing, the Company issued a written warning notice to Anenburn. She was cited for arriving late to work on various dates between September 22, 1979 and November 3, 1979. See J.App. at 329. Anenburn testified at the NLRB hearing that she had received oral permission to arrive late on the days cited in the warning. She also stated that the Company had never before issued a warning to her and further that management had complimented her on several occasions for her exemplary work.

The ALJ found that Ms. Anenburn had testified credibly when relating the events that precipitated her warning notice. He also noted that Anenburn had never previously been cited for tardiness. The ALJ found the timing of the Company's decision to issue a warning notice to be especially troubling. He questioned why management would have waited until one day after Ms. Anenburn had appeared at a Board representation hearing to cite her for instances of tardiness that occurred in most cases one month prior...