Advocate South Suburban Hosp. v. N.L.R.B., 06-1346.

• Decision Date: 21 November 2006
• Docket Number: No. 06-1511.,No. 06-1346.,06-1346.,06-1511.
• Citation: 468 F.3d 1038
• Parties: ADVOCATE SOUTH SUBURBAN HOSPITAL, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Service Employees International Union, Intervening Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1038

468 F.3d 1038

ADVOCATE SOUTH SUBURBAN HOSPITAL, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Service Employees International Union, Intervening Respondent.

No. 06-1346.

No. 06-1511.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2006.

Decided November 21, 2006.

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Douglas A. Darch (argued), Seyfarth Shaw, Chicago, IL, for Advocate South Suburban Hosp., Petitioner.

David Seid (argued), Aileen Armstrong, National Labor Relations Board Office of the General Counsel, Washington, DC, for N.L.R.B., Respondent.

Michael H. Slutsky (argued), N. Elizabeth Reynolds, Allison, Slutsky & Kennedy, Chicago, IL, for Service Employees Intern. Union, AFL-CIO, Intervenor.

Before CUDAHY, EASTERBROOK, and MANION, Circuit Judges.

CUDAHY, Circuit Judge.

Advocate South Suburban Hospital was charged with unlawfully threatening one of its nurses for her participation in the Service Employees International Union's campaign to organize Advocate employees. The National Labor Relations Board concluded that one of Advocate's managers coercively interrogated and threatened the nurse and implied that the union was under surveillance, all in violation of National Labor Relations Act § 8(a)(1), 29 U.S.C. § 158(a)(1). However, the Board dismissed another, similar charge against a security guard. It ordered Advocate to cease and desist from interfering with its employees' rights and to post a notice informing the employees of their rights. Advocate now petitions for review of the NLRB's decision, while the NLRB cross-petitions for enforcement of its order. The union intervenes in support of the NLRB. We deny Advocate's petition for review and grant the NLRB's cross-petition for enforcement.

I. Background

Advocate South Suburban Hospital (Advocate) employs about 1,350 people at its facilities in Hazel Crest, Illinois. In the summer of 2004, Service Employees International Union (SEIU) was campaigning to unionize some of them. One employee receptive to SEIU's campaign was Susan Hall, a Certified Nurse Assistant still employed at Advocate at the time of her testimony. In 2004 she had worked the graveyard shift and an occasional night shift at Advocate for six and a half years. Hall claims that when Advocate discovered her attendance at SEIU meetings and she appeared in SEIU literature she was threatened by her supervisor Beverly Mulvihill, Advocate's Manager of Surgical Services. Hall also claims that a security guard warned her not to pass out SEIU literature to other employees. Advocate and its witnesses claim that neither of the alleged events occurred.

In a hearing before an Administrative Law Judge (ALJ), Hall testified that two SEIU representatives, identified only as C.J. Grimes and Julie, visited her house some time in the summer of 2004. (The precise date is unknown; Hall could roughly describe when events occurred in relation to each other but was mostly unable to give precise dates.) After they discussed conditions at the hospital, the organizers invited Hall to an SEIU meeting. Hall attended two such meetings at the Tinley Park Convention Center, the first about a week and a half to two weeks after Grimes and Julie visited Hall's house, the second about a week and a half after the first meeting. During the second meeting the SEIU photographed her. Hall's only other union-related activity prior to "late July, early August 2004" was a discussion at the hospital with three co-workers about how the union had acquired their names, addresses and telephone numbers. (Hearing Tr. at 135.)

Hall's flirtation with the SEIU allegedly drew a threat from Advocate. She testified that on a day between late July and August 12, 2004,¹ she was working a double shift (night and graveyard). At 3:30 or 4:00 p.m., Mulvihill caught Hall in the hallway and said she needed to talk to Hall. (Id. at 136-37.) Thinking that she was being disciplined for some infraction, Hall followed Mulvihill into Mulvihill's office, where Kathy Mrozek, Advocate's Director of Nursing, was already present. (Id. at 137-38, 251.) Mulvihill told Hall to close the door, and she did. (Id. at 153, 230.) Mulvihill then told Hall that she had been hearing people talk about the union. Hall responded that everybody was talking about it. Mulvihill added that she had specifically heard that Hall had been talking. (Id. at 137, 154.) Hall said she didn't want to discuss it. Mulvihill then said sternly that "we make examples" of people who talk about the union, and that "[t]here will be a sacrificial lamb." (Id.) Nonplused, Hill told Mulvihill to "do whatever" and left the office. (Id.) According to Hall, Mrozek was silent throughout the conversation. (Id. at 139-40.) Hall felt that her job had been threatened and telephoned C.J. Grimes to tell her what had happened. (Id. at 155.)

Advocate contends that Hall's story is a complete fabrication. Mulvihill testified that she never made any of the comments that Hall attributed to her at any time. Mrozek testified that she had not been in Mulvihill's office with Hall "on or about August 9," that Mulvihill had never asked her to watch Mulvihill discipline an employee and that she had never heard another supervisor tell Hall that Advocate would make a "sacrificial lamb" out of anyone. (Id. at 382-83.) Advocate also attempted to impeach Hall with statements about the confrontation she had made in SEIU videos and speeches, and with quotes from SEIU pamphlets. While Hall's story has the same backbone in the union materials as in her testimony, the sources arguably vary with respect to where the confrontation occurred and whether Mrozek was present.

Reviewing the evidence, the ALJ concluded that Mulvihill had interrogated and threatened Hall and implied that the SEIU was under surveillance, meaning that Advocate had interfered with Hall's right to assist labor organizations in violation of t § 8(a)(1) (NLRA), 29 U.S.C. § 158(a)(1). The ALJ found Hall's testimony credible, stating that she appeared sure of her recollection, gave spontaneous answers and held to her story under "withering cross-examination." (ALJ Op. at 4.) Further, she had little reason to falsely testify against Advocate in light of her continued employment there, and there was "no evidence that Hall was hostile to management or biased as a result of having been disciplined." (Id.)

Although Hall had made prior inconsistent statements and "had the tendency to exaggerate or embellish her statements in minor respects," these did not shake the ALJ's belief in the essential elements of her story. (Id. at 5.) Hall testified that the SEIU composed the brochures and scripted her videos and speeches. To the extent that the inconsistencies could be attributed to her, they were minor. Her prior statements still generally supported her testimony, and where they differed from it the ALJ found her testimony the more believable account.

Mulvihill's testimony, by contrast, sounded "mechanical" and "rehearsed" to the ALJ, and she appeared "evasive" and "defensive" when asked questions by opposing counsel. (Id. at 5.) Further, her management position and her critical description of union tactics that she seemed to feel improperly harassed employees² led the ALJ to conclude that she was biased in favor of Advocate.

Mrozek, the ALJ found, was also biased as an Advocate manager and as Mulvihill's personal friend. Further, she had answered limited questions and had not clearly denied the key elements of Hall's story. Her testimony that she had not witnessed any discipline, had not heard the term "sacrificial lamb" and had not seen Hall in Mulvihill's office on or about August 9 left open the possibility that there had been a confrontation (not involving the dramatic "sacrificial lamb" comment) at some time before August 9.

Hall also testified that an Advocate security guard threatened her the week of October 13, 2004. After briefly talking to C.J. Grimes and another union organizer in the street outside the hospital, Hall parked in the hospital lot. A security guard approached and asked her if she knew "those people." He told her that if she talked to them on hospital property she could be arrested, and that if she passed out any of their stuff on hospital property she would be "walked off the premises." (Hearing Tr. at 146-48.) Although Hall described the security guard, she did not know who he was and had not tried to identify him except by asking another guard if he knew a co-worker matching her description. Apparently he did, one "Roger" who was no longer employed by Advocate at the time of the hearing.

The ALJ did not find a violation with respect to the security guard incident. Although he believed that the "general scenario" could have occurred, Hall's tendency to exaggerate and embellish made him worry that the guard's alleged threats may have been innocent. Hall had no right to distribute union literature on company time and in patient care areas, so "slight variation[s]" in what the guard told her could make the difference between a proper instruction and a prohibited threat. Additionally, he thought it unfair to Advocate that Hall had not identified the guard and that he now, apparently having left Advocate's employ, could not be located to testify. (Id. at 7.)

The ALJ ordered Advocate to cease and desist from interrogating and threatening employees and suggesting that union activities are under surveillance. It also required posted notice informing employees of their rights. Advocate appealed the ALJ's decision to the National Labor Relations Board (the NLRB or the Board). The NLRB adopted and affirmed the ALJ's decision subject to one minor modification.³ In re Advocate South Suburban Hospital, 346 NLRB No. 23, 2006 WL 92791 (Jan. 10, 2006). The parties now take the fight to this court. Advocate petitions for review of the NLRB's decision on many grounds; the NLRB, with the...