Americare Pine Lodge Nursing and Rehabilitation Center v. N.L.R.B., s. 97-2719

• Decision Date: 07 January 1999
• Docket Number: 98-1120,Nos. 97-2719,s. 97-2719
• Citation: 164 F.3d 867
• Parties: 160 L.R.R.M. (BNA) 2201, 137 Lab.Cas. P 10,341 AMERICARE PINE LODGE NURSING AND REHABILITATION CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner, v. Americare Pine Lodge Nursing and Rehabilitation Center, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 867

164 F.3d 867

160 L.R.R.M. (BNA) 2201, 137 Lab.Cas. P 10,341

AMERICARE PINE LODGE NURSING AND REHABILITATION CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

National Labor Relations Board, Petitioner, v. Americare Pine Lodge Nursing and Rehabilitation Center, Respondent.

Nos. 97-2719, 98-1120.

United States Court of Appeals Fourth Circuit.

Argued Sept. 23, 1998.

Decided Jan. 7, 1999.

ARGUED: Thomas Patrick Dowd, Littler, Mendelson, P.C., Baltimore, Maryland, for Center. Julie Brock Broido, Senior Attorney, National Labor Relations Board, Washington, D.C., for Board. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General, Aileen A. Armstrong, Deputy Associate General, Peter Winkler, Supervisory Attorney, National Labor Relations Board, Washington, D.C., for Board.

Before MURNAGHAN and WILLIAMS, Circuit Judges, and BULLOCK, Chief United States District Judge from the Middle District of North Carolina, sitting by designation.

Petition for review granted in part and denied in part, and cross application for enforcement granted in part and denied in part by published opinion. Judge WILLIAMS wrote the opinion, in which Chief Judge BULLOCK joined. Judge MURNAGHAN wrote a separate opinion concurring in part and dissenting in part.

OPINION

WILLIAMS, Circuit Judge:

Americare Pine Lodge Nursing and Rehabilitation Center (Pine Lodge) petitions for review, and the National Labor Relations Board (the Board) cross-petitions for enforcement, of the Board's order determining that Pine Lodge violated § 8(a)(1) and (a)(5) of the National Labor Relations Act (NLRA or the Act) by engaging in direct dealing with its employees, unlawfully withdrawing recognition from the employees' union as the exclusive bargaining representative, and unilaterally imposing wage increases. See 29 U.S.C.A. § 158(a)(1) & (a)(5) (West 1998). For the reasons stated herein, we grant Pine Lodge's petition for review in part and deny it in part; and we grant the Board's cross-petition for enforcement in part and deny it in part.

I.

This case arises from events surrounding Pine Lodge's July 1995 attempt to secure an extended labor agreement approximately five months before the expiration of the agreement then in effect. ¹ The employees were represented by The Healthcare and Social Union, SEIU, AFL-CIO (the Union) and successfully had negotiated a labor agreement covering the period from December 9, 1993, to December 7, 1995 (the 1993 agreement). That agreement did not have a reopener clause, but did allow for written amendments with the consent of both parties.

Because Pine Lodge was planning to open a new subacute care unit in December 1995, it wished to avoid labor negotiations during that period. It therefore forwarded a letter to the Union on July 5, 1995, offering to extend the 1993 agreement for one year. In return for the extension, Pine Lodge offered a $.25 or $.50 per hour wage increase, dependent upon job classification, to the represented employees. The offer was set to expire by its own terms on July 17, 1995. Pine Lodge faxed the July 5, 1995, offer letter to the Union. Soon afterwards, that same offer letter was posted near the Pine Lodge employee time clock so that the employees could read it.

The Union representative charged with responsibility for Pine Lodge's bargaining unit, Jennifer Jordan, was away on vacation when the offer was received at the Union offices. Upon her return on July 11, she received the offer letter and several messages from Pine Lodge employees concerning the outstanding offer. She visited with employees about the offer on July 14, three days before it was set to expire. Based on her discussions, Ms. Jordan decided that the employees did not favor the offer and instead preferred to negotiate other matters such as grievance procedures and fringe benefits at a date closer to the expiration of the 1993 agreement. A few employees also asked Jordan about anniversary wage increases, a provision that was included in the 1993 agreement. The Union chose not to make a counter-proposal and simply allowed the offer to expire.

While the offer was outstanding, however, two conversations concerning the proposal occurred between Pine Lodge supervisors and employees. The first occurred between Dietary Manager Dreama Thomas and four employees. Thomas held a meeting at which Brenda Elliott, one of her employees, raised a question concerning the status of anniversary wage increases under the new proposal. Because Thomas was not familiar with the details of the proposal, she requested Office Manager Jackie Clark to join the meeting and respond to the question. Clark also was unable to explain how the anniversary wage increases were to be treated under the new proposal. After a short discussion, the meeting ended without any resolution.

Dreama Thomas also was involved in a second conversation regarding the proposal, this time with an employee named Dorothy Smith. During a smoking break in Smith's car, Thomas asked Smith her opinion of Pine Lodge's proposal. Smith responded that it sounded good, but that it was made simply to get rid of the Union. Thomas made no response and their discussion of the proposal ended.

Despite the expiration of the July 5 proposal, Pine Lodge submitted another proposal to the Union on July 28, 1995. This proposal mirrored the first, but specifically noted that anniversary wage increases would be maintained in addition to the newly offered hourly raises. The July 28 offer letter also stated:

If you really care about the hard working employees at Americare-Pine Lodge, then you will give them an opportunity to have a secret ballot vote on whether or not to accept this large and very generous wage increase. I honestly believe this proposal is much more than we will be offering if we have to bargain in December 1995.

(J.A. at 304.) Pine Lodge also copied the July 28 offer letter to its employees.

Along with the July 28 letter, Sherry Johnson, the Administrator at Pine Lodge, authored and distributed a memorandum to the Pine Lodge employees. The memorandum read as follows:

I have had many employees come to me asking if the wage increase that was offered earlier could be extended or reoffered since the union did not respond to the previous offer.

I am pleased to announce that the company has agreed to reoffer this proposal. Also, please note for the employees who were concerned about not getting an anniversary increase, that this is being offered also.

I feel that this is an extremely fair offer for each of you. I urge you to giving [sic] this proposal serious thought.

I will be holding meetings next week to discuss this more indepth [sic] for those who have questions.

Please note in the attached correspondence that the union must respond to Steve Ronilo, our human resource vice president by 6:00 p.m. on Friday, August 4, 1995, if you want this wage increase.

Thank you for your time and attention to this proposal.

(J.A. at 306.)

On July 31, after receiving the second offer letter, Jennifer Jordan again met with Pine Lodge employees and distributed a flyer notifying them that the Union intended to hold a membership meeting on August 4, at which it would take a vote on the second offer. Between July 31 and August 4, the Union and Pine Lodge actively campaigned for their positions. Both sides distributed flyers encouraging the employees to vote for or against the proposal. ² Sherry Johnson and another supervisor, Nancy Cooper, also approached a few employees individually and discussed the offer with them personally, once the Union announced the decision to hold a vote. Finally, during that same period, members of Pine Lodge management held a meeting for nursing assistants and encouraged them to vote in favor of the proposal.

At the August 4 Union meeting, the employees soundly rejected the offer, but only 28 of the 73 bargaining unit employees voted. On August 7, Sherry Johnson issued a memorandum announcing that the wage increase would not be implemented.

Between August 25 and September 7, employees submitted signed copies of a petition to Pine Lodge's management expressing their desire to remove the Union as their exclusive bargaining representative. A majority, thirty-nine of the bargaining unit's seventy-three employees, signed the petition. Based on the petition, Steve Ronilo, the Vice President of Human Resources for Pine Lodge's parent company, sent a letter to the Union dated September 8 stating that Pine Lodge was in possession of objective evidence that the Union no longer represented a majority of employees, and that Pine Lodge was, therefore, withdrawing recognition from the Union upon the expiration of the 1993 agreement. True to its word, Pine Lodge withdrew recognition from the Union on December 7, 1995, and unilaterally implemented the previously offered wage increase the following day.

Based on charges lodged by the Union, the Board issued a complaint against Pine Lodge accusing it of engaging in unfair labor practices. Specifically, the complaint charged that Pine Lodge circumvented the Union and dealt directly with the employees, improperly withdrew recognition from the Union, and unilaterally increased wages without engaging in mandatory bargaining. After a hearing was conducted, an administrative law judge (ALJ) concluded that Pine Lodge engaged in unfair labor practices in violation of § 8(a)(1) and (a)(5) of the NLRA. The ALJ specifically found that Pine Lodge impermissibly dealt directly with employees. Consequently, the ALJ determined that the employee's decertification petition was tainted and that Pine Lodge inappropriately relied upon it to withdraw recognition from the Union and unilaterally to grant wage increases to the employees.

The Board agreed with the ALJ's conclusions and, with only slight modification, adopted the ALJ's order on November 8, 1997. The order required Pine Lodge to: inform employees of...