Aroostook County Regional Ophthalmology Center v. N.L.R.B.
| Decision Date | 12 April 1996 |
| Docket Number | No. 95-1291,95-1291 |
| Parties | 151 L.R.R.M. (BNA) 2993, 317 U.S.App.D.C. 114, 131 Lab.Cas. P 11,549 AROOSTOOK COUNTY REGIONAL OPHTHALMOLOGY CENTER, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Philip J. Moss was on the briefs for petitioner.
Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Margaret G. Neigus, Supervisory Attorney, and Deborah E. Shrager, Attorney, National Labor Relations Board, were on the brief for respondent.
Before: EDWARDS, Chief Judge, SILBERMAN and GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge HARRY T. EDWARDS.
Aroostook County Regional Ophthalmology Center ("ACROC" or "Company") petitions for review of a National Labor Relations Board ("NLRB" or "Board") order finding that it committed several unfair labor practices in violation of the National Labor Relations Act ("NLRA" or "Act"). See Aroostook County Regional Ophthalmology Center, 317 N.L.R.B. 218, 1995 WL 261523 (1995) ("Order"). 1
The Board found ACROC guilty of unfair labor practices for promulgating and enforcing overly restrictive rules limiting the right of employees to discuss office business and work grievances. The Company was also found to have violated the Act in firing employees who violated the rules, and then in denying reinstatement to employees who refused to adhere to unlawful conditions imposed by management.
We find that the disputed rules contained in ACROC's Office Policy Manual do not improperly infringe upon employee rights under the NLRA. Likewise, we find that ACROC was justified in firing employees for good cause. However, we uphold the Board's finding that ACROC improperly imposed illegal conditions upon the rehiring of the fired employees. Accordingly, the petition for review and cross-petition for enforcement each are granted in part and denied in part.
Dr. Craig Young, an ophthalmologist, founded ACROC in 1977. Although Dr. Young remains the primary manager of the operation, ACROC employs several physicians to perform eye surgery and to otherwise treat patients who use the Center. The non-physician staff at ACROC is not unionized, and it is undisputed that there has been no union activity or solicitation among these employees.
ACROC's main facility is in Presque Isle, Maine. All of the surgery performed by ACROC's physicians is done either at the "ambulatory surgery center" at the Presque Isle facility or, if general anesthesia is required, in a hospital in Presque Isle. ACROC has additional facilities elsewhere in northern Maine, which are operated a few days each month by ACROC personnel who travel from the Presque Isle area in the morning and return the same night.
ACROC's offices are run pursuant to an "Office Policy Manual." Two of the provisions in that manual are at issue in this petition. One states:
No office business is a matter for discussion with spouses, families or friends.
Aroostook County Regional Ophthalmology Center Office Policy Manual at 4 ("OPM"), reprinted in Appendix ("App.") 80. The other states:
All grievances are to be discussed in private with the office manager or physicians. It is totally unacceptable for an employee to discuss any grievances within earshot of patients.
Id. at 21, reprinted in App. 97.
On May 29, 1992, four ACROC employees were fired for conduct inconsistent with the foregoing rules. The day before, Dr. Young had changed the work schedules of an ophthalmic technician and three registered nurses in order to accommodate an emergency surgical procedure. Under the revised schedule, the locations to which the employees were to report on May 29 were altered, and two of the employees were required to work from 8 a.m. until 2 p.m. without a lunch break.
When the employees heard of the schedule adjustment, they expressed dissatisfaction and exasperation over the inconvenience caused by the change; they also complained that work schedules at ACROC were often altered. On the evening of May 28, Dr. Young heard from several independent sources that the employees had voiced their complaints within earshot of ACROC patients.
Dr. Young met with the four employees on the morning of May 29. He criticized their behavior over the prior year and he recounted what he had been told about their actions the day before. After a short discussion, Dr. Young fired the employees for misconduct; however, he then told the staff members that they could retain employment with ACROC if they agreed to certain conditions. Two of those conditions, one of which required the employees to bring all complaints to Young and no one else, and the other of which compelled the employees to stop gossiping and complaining amongst themselves, are at issue in this case. Two of the employees rejected Dr. Young's offer; the others opted to retain their employment with ACROC. 2
The employees who rejected Dr. Young's offer filed charges with the NLRB, alleging that the company had committed several unfair labor practices pursuant to section 8(a)(1) of the NLRA. 3 Following issuance of a complaint, an Administrative Law Judge ("ALJ") found the Office Policy Manual provision limiting discussion of business with spouses, families, or friends to be a prima facie violation of section 8(a)(1) of the NLRA, because "employees have the right to seek the assistance of, among others, 'spouses, families or friends' on matters pertaining to their terms of employment." Order, 317 N.L.R.B. at 224. As to the limitation on the time and manner of discussion of employee grievances, the ALJ found that ACROC could restrict employees from discussing grievances "within earshot of patients," but could not otherwise limit with whom employees could discuss their complaints to certain members of ACROC management. Id. at 224-25.
Even though the ALJ took issue with ACROC's policies, he found that the Company did not violate the NLRA in firing the employees, because they were not engaged in protected concerted activity at the time they were fired, and, in any event, the discharge of the employees for discussing their grievances in front of patients was not unlawful. However, the ALJ found that the conditions ACROC placed on the rehiring of the employees violated the NLRA, because the purpose of the conditions was to prevent employees from discussing among themselves dissatisfaction with their employment conditions.
On review, the Board went much further than the ALJ, not only embracing the unfair labor practices cited by the ALJ, but also declaring that the Office Policy Manual provision limiting the discussion of work issues in front of patients and the staff firings violated the Act. According to the Board, changes in work schedules "are directly linked to hours and conditions of work--both vital elements of employment--and are as likely to spawn collective action as the discussion of wages." Order, 317 N.L.R.B. at 220. Thus, according to the Board, the staff conduct that lead Dr. Young to dismiss the affected employees was protected concerted activity.
As a threshold matter, we reject ACROC's argument suggesting that, in light of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the NLRB's jurisdiction over this matter is in doubt. The Supreme Court has stated that "Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause," NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963) (per curiam). There is nothing in this record that calls into question the Board's jurisdiction over ACROC's operations. Even if ACROC only operates in one state, it has been well-established that the federal government may regulate local businesses that are representative of those " 'throughout the country,' " the activities of which, " 'if left unchecked may well become far-reaching in [their] harm to commerce.' " Id. (quoting Polish Nat'l Alliance of the United States v. NLRB, 322 U.S. 643, 648, 64 S.Ct. 1196, 1199, 88 L.Ed. 1509 (1944)). Courts have also found that the Board may regulate companies receiving income from interstate sources, see, e.g., NLRB v. Marsden, 701 F.2d 238, 240-41 (2d Cir.1983), and purchasing small amounts of supplies in interstate commerce, see, e.g., NLRB v. Maxwell, 637 F.2d 698, 703-04 (9th Cir.1981). Presumably, ACROC has such contacts outside of Maine, because the Company "admit[ted] that it is an employer engaged in commerce within the meaning of [the NLRA] and that the Board accordingly has jurisdiction over this matter." Order, 317 N.L.R.B. at 223. We also note that ACROC does not appear to have raised any challenge to the Board's jurisdiction prior to this appeal, so we must assume that ACROC assented to the Board's review of this matter.
We turn then to the merits to determine whether there is substantial evidence to support the Board's findings and conclusions. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); see also 29 U.S.C. § 160(e) (1994).
The Board adopted the ALJ's determination that ACROC's rule prohibiting employees from discussing "office business" with "spouses, families or friends" was a prima facie violation of section 8(a)(1) of the NLRA because "employees have the right to seek the assistance of, among others, 'spouses, families or friends' on matters pertaining to their terms of employment." Order, 317 N.L.R.B. at 224. There can be no quarrel with the claim that, under the NLRA, employees are generally free to discuss the terms and conditions of their employment...
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