1621 Route 22 W. Operating Co. v. Nat'l Labor Relations Bd.

• Decision Date: 06 June 2016
• Docket Number: No. 15–2466,No. 15–2586,15–2466,15–2586
• Citation: 825 F.3d 128
• Parties: 1621 Route 22 West Operating Company, LLC, d/b/a Somerset Valley Rehabilitation and Nursing Center, Petitioner in No. 15–2466 v. National Labor Relations Board, Petitioner in No. 15–2586
• Court: U.S. Court of Appeals — Third Circuit

825 F.3d 128

1621 Route 22 West Operating Company, LLC, d/b/a Somerset Valley Rehabilitation and Nursing Center, Petitioner in No. 15–2466

v.National Labor Relations Board, Petitioner in No. 15–2586

No. 15–2466

No. 15–2586

United States Court of Appeals, Third Circuit.

Argued February 29, 2016

Filed: June 6, 2016

Rosemary Alito [ARGUED], George P. Barbatsuly, Laura Scully, K & L Gates LLP, One Newark Center, 10th Floor, Newark, NJ 07102, Counsel for Petitioner/Cross–Respondent, 1621 Route 22 West Operating Company LLC, d/b/a Somerset Valley Rehabilitation and Nursing Center.

Jeffrey W. Burritt [ARGUED], Linda Dreeben, Jill A. Griffin, National Labor Relations Board, Appellate and Supreme Court Litigation Branch, 1015 Half Street, S.E., Washington, DC 20570, Benjamin M. Shultz [ARGUED], U.S. Department of Justice, Civil Division, Room 7211, 950 Pennsylvania Ave., N.W., Washington, DC 20530, Counsel for Respondent/Cross–Petitioner National Labor Relations Board.

Katherine H. Hansen, William S. Massey, Patrick J. Walsh, Gladstein Reif & Meginniss LLP, 817 Broadway, 6th Floor, New York, NY 10003, Counsel for Intervenor, 1199 SEIU United Healthcare Workers East New Jersey Region.

Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges.

OPINION OF THE COURT

JORDAN

, Circuit Judge.

Somerset Valley Rehabilitation and Nursing Center (“Somerset” or the “Employer”), known formally as 1621 Route 22 West Operating Company, LLC, petitions for review of an Order of the National Labor Relations Board (“NLRB” or the “Board”) that declared Somerset had committed several unfair labor practices in violation of Section 8 of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158

. The Board cross-applies for enforcement of that Order. We will deny the petition for review and grant the cross-application for enforcement.

I. Background

This dispute arises out of a union election and its aftermath at Somerset in 2010. The nurses at the facility organized under the auspices of 1199 SEIU United Healthcare Workers East, New Jersey Region (the “Union”), which is an intervenor in this case in support of the Board. According to the Union and the Board, Somerset engaged in unfair labor practices—both during and after the election—in an effort to discourage the exercise of labor rights.

We begin by recounting the background of the dispute and the lengthy procedural history that brings it before us now. Under the NLRA, “[t]he 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.” 29 U.S.C. § 160(e)

. Given the deference we thus owe to the Board's fact-finding, and further given that Somerset's objections are principally to the Board's legal conclusions, we recount the facts as found by the Board, which itself adopted the findings of the Administrative Law Judge (“ALJ”) who initially heard the complaint against Somerset.

A. Factual Background

Somerset is a 32–room, 64–patient–maximum nursing and rehabilitation center in Bound Brook, New Jersey, operated since 2006 by CareOne Management, Inc. (“CareOne”), a manager of multiple nursing and rehabilitation facilities. Somerset employs about 75 nurses in the relevant bargaining unit, which comprises registered nurses (RNs), licensed practical nurses (LPNs), and certified nurses' aides (CNAs). The ranks of the nurses include full-time employees, part-time employees, and “per diem” employees who work “as needed” and without a regular schedule. (J.A. 10.) In addition, Somerset employs supervisory nurses who act as managers. When a supervisory nurse is not on duty, a senior nonsupervisory nurse will serve as a “charge nurse” to be the “link between the floor nurse and the physician.” (J.A. 10.)

1. Pre–Election Period

The unionization drive began around June 2010, when Elizabeth Heedles, the Administrator of the facility, announced that Somerset would be reducing working hours and changing employees' schedules. Several nurses, including Sheena Claudio, Shannon Napolitano, and Jillian Jacques, were concerned about the new schedules they were asked to follow. One of the supervisory nurses, Jacqueline Southgate, who would become a key witness for the Union, was also troubled that her full-time schedule was to be downgraded.

Somerset emphasizes that, prior to the announced scheduling changes, the New Jersey Department of Health and Senior Services conducted a survey of the facility in December 2009 that resulted in two citations for violations of state standards.¹ As the ALJ later characterized the violations, “[t]he surveyors did not believe that a patient's pain was adequately controlled by the nurse assigned to her care.” (J.A. 12.) Somerset suggests that the poor survey “resulted in increased scrutiny on the Somerset nursing department” and led it to begin revamping its operations to improve care. (Opening Br. at 8.) The ALJ, however, disagreed and saw the survey violations as routine, suggesting that Somerset's characterization was a post hoc pretext for anti-union actions. According to the ALJ, it was “common” for a facility to be cited for deficiencies, and, in this case, Somerset “corrected the deficiencies within a couple of weeks after receiving the report, and submitted a written plan of correction in late December 2009,” which the state accepted. (J.A. 12.) A state recertification survey in January 2010, just a month after the original survey, found that Somerset was in substantial compliance, though the survey report did recommend a 27–day $200–per–day penalty for the December violations.

Whatever the motive for the operational changes at Somerset, they prompted concern among the nurses. Jacques responded by contacting CareOne's Vice President of Human Resources, Andrea Lee, who promised to “look into it.” (J.A. 10.) Lee visited the facility, met with several nurses, expressed surprise about the large-scale changes, and promised to continue looking into it. She did not, however, follow up with the nurses any further. Consequently, they made contact with the Union and met with Union organizer Brian Walsh in late June 2010.

Claudio, Napolitano, and Jacques then began speaking about the Union with their colleagues at Somerset and generated interest from several other nurses, including Southgate, Valerie Wells, and Lynette Tyler. They prepared a pro-Union YouTube video, distributed and collected Union authorization cards,² held meetings at employees' homes and at a local diner, and organized employees to wear pro-Union stickers. Their campaign culminated in a July 22, 2010 petition for a union election submitted to the Board by nurses Jacques and Napolitano and organizer Walsh. The Union then circulated to Somerset's employees a pro-Union brochure with photographs of 35 employees, including Claudio, Jacques, Napolitano, and Wells. Somerset acknowledges that “Napolitano, Claudio, and Jacques were among the leaders in the Union organizing campaign.” (Opening Br. at 9 (citing J.A. 1673).)

Just over a week after the union petition was filed, CareOne's regional director, Jason Hutchens, brought Doreen Illis into Somerset to replace Heedles as Administrator. Illis was transferred from a substantially larger CareOne facility, and Heedles took over at the facility that Illis left. The ALJ expressed doubt that Heedles was shifted for reasons of effectiveness, noting that she was transferred to lead a facility with double the number of beds, and that CareOne was aware of the disenchantment with the scheduling changes at Somerset. Somerset made other management changes in August 2010, including bringing in Inez Konjoh as a replacement Director of Nursing and giving Southgate management responsibilities.

2. Election Campaign

By late July, after the union petition was filed, an election campaign was in full swing. Somerset campaigned vigorously against the union—as it had a right to do—but in so doing it undertook actions that the Board later concluded crossed the line into unfair labor practices.

Hutchens held several meetings with employees and received their complaints about the controversial schedule changes. That schedule was ultimately not implemented. In the meetings, Hutchens apologized for the proposed changes and said that he had brought in a new Administrator and Director of Nursing to rectify the problems. When employees pressed him about ongoing problems, he noted that any policy changes during the union election would be illegal, but he asked the employees to give Somerset a chance to show them that things could improve. Several employees testified about the meetings and further indications from CareOne managers that they would “fix” things. (J.A. 31) Several employees also testified that managers talked to them personally about the Union and urged them to vote against it.

Though he denied any unlawful activity, Hutchens acknowledged that the Employer ran a “vote no” campaign. (J.A. 14.) He and other Somerset officials held general meetings and spoke with nurses at the nursing stations. Chris Foglio, the Chief Executive Officer of CareOne, met with employees and discussed benefits that CareOne might offer, including support for housing expenses and tuition reimbursement. Management held meetings within its own ranks, discussing Union activities and how each individual nurse might vote. It also distributed leaflets to employees to dissuade them from voting for the union.

Management rectified some specific complaints during the campaign. When one nurse, Annie Stubbs, complained about a lack of garbage bags, garbage bags were distributed the next day. When Tyler told Illis her responsibilities were overwhelming her, a week later her duties were reduced at about the same time that Illis asked her to convince other employees to vote against the Union.

The election was finally held on September 2, 2010. Out of 71 votes cast, 38 were for the Union and 28 against, with five ballots being subject to challenge. After hearing and...