Bellwood General Hosp., Inc. v. N.L.R.B.

• Decision Date: 11 August 1980
• Docket Number: No. 79-1818,79-1818
• Parties: 105 L.R.R.M. (BNA) 2410, 89 Lab.Cas. P 12,203 BELLWOOD GENERAL HOSPITAL, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 98

627 F.2d 98

105 L.R.R.M. (BNA) 2410, 89 Lab.Cas. P 12,203

BELLWOOD GENERAL HOSPITAL, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 79-1818.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 28, 1980.

Decided Aug. 11, 1980.

David L. Cohen, Marina Del Rey, Cal., for petitioner.

Christopher Katzenbach, NLRB, Washington, D. C., for respondent.

Before PELL, BAUER and CUDAHY, Circuit Judges.

PELL, Circuit Judge.

This case is before the court on the petition of Bellwood General Hospital, Inc. (Hospital) for review of an order of the National Labor Relations Board and the Board's cross-application for enforcement of that order. The Board's order, 243 NLRB 23 (1979), required collective bargaining with Bellwood Registered Nurses Association, United Nurses' Association of California (BRNA-UNAC or Union). The Board found that the Hospital had failed to establish adequately its good faith doubt of the previously certified union majority status. The factual circumstances surrounding the alleged failure to bargain and consequently found unfair labor practice are not in dispute.

BRNA-UNAC was certified to represent the registered nurses employed at the Hospital after a Board election held on July 30, 1976. UNAC is the parent association of the affiliate BRNA. Extended negotiations (46 meetings) followed the certification and a contract was signed in November of 1977 which covered a term from October 1, 1977 to April 30, 1978 with economic benefits retroactive to May 1, 1977. During these negotiations, the Union was represented by Kathy Jiannino, president of UNAC, Thomas Robertson, executive administrator of UNAC who acted as chief negotiator for the Union, Betty Timmins, president of BRNA, and four registered nurses employed by the Hospital, Anna Gallizio, Joan Enkhorn, Joan Johnston, and Cheri McGowan. The Hospital was represented by Raymond Bohard, an outside labor relations consultant.

Shortly after the execution of the first contract, Robertson contacted Bohard concerning the Hospital's failure to pay certain of the retroactive economic benefits. Apparently this difficulty was settled between the parties. Soon thereafter, Timmins, Gallizio, and Enkhorn all left the employment of the Hospital. On January 4, 1977, Bohard requested Robertson to furnish, as required under the contract, a list of the union members employed at the Hospital. Robertson never responded to this letter, apparently in retaliation for the Hospital's earlier failure to give certain requested information to Robertson. No charge, however, was filed concerning these alleged contract violations.

On January 27, 1978, the Hospital notified the Union, as required by the contract, of its intention to terminate the agreement upon its expiration on April 30th. On January 28, the Union responded by expressing the desire to commence bargaining for a successor agreement. Prior to any meeting concerning the second contract, however, the Hospital, on February 23, 1978, filed a petition with the Board's regional office requesting a new election and alleging that the Union no longer represented a majority of the registered nurses. The petition was dismissed by the Regional Director on grounds of timeliness and the merits of the petition were never reached. ¹

On March 7, 1978, Jiannino sent a letter to all Hospital nurses for whom the Union had addresses calling for a meeting on March 15 to discuss the upcoming contract negotiations. Only two nurses attended the meeting, including the nurse in whose home the meeting was held, although two additional nurses spoke with Jiannino by telephone. It was approximately at this time, apparently, that Esperenza Kroll, BRNA's elected treasurer, told the Hospital's personnel director that she was considering resigning because of the nurses' lack of interest in the Union. At the meeting of the nurses she had called, Jiannino appointed nurses McGowan and Johnston to act as "interim" secretary and treasurer of BRNA, respectively, although the record indicates there was no established procedure or contract authority for these "appointments." A president was not appointed to replace Timmins.

The parties held the first negotiating meeting regarding the successor contract on April 13, 1978. Only Robertson and Jiannino were present to represent the Union because neither McGowan nor Johnston, the only remaining employed members of the original negotiating team, wished to have their work schedules changed so as to attend the meetings. At the start of the meeting, Bohard gave a letter to Robertson stating:

Bellwood General Hospital, Incorporated has a good faith doubt that the Bellwood Registered Nurses Association or the United Nurses Associations of California, nor any other organization, is the designated bargaining representative for the Hospital's Registered Nurses in an appropriate bargaining unit as defined in the National Labor Relations Act.

Until the issues raised herein are resolved to the Hospital's satisfaction, the Hospital reserves the right to withdraw from any negotiations, should it be established that the Union(s) are no longer the authorized bargaining representative for the Registered Nurses at the Hospital.

However, the Hospital is agreeable to meet at mutually agreeable times and places in order to comply with any bargaining obligation which may exist.

The meeting continued and concluded with the scheduling of a second meeting on April 24 and the submission by the Union of various contract proposals.

At the April 24 meeting, the Hospital submitted various counter-proposals to the Union including a proposal that the wages of the nurses be increased by 6.5% instead of the Union's requested 11%. Regarding this proposal, Robertson testified, "I told him it was not responsive to our proposal, and that I would get back to him and we would consider it." A third meeting was then scheduled for May 19, 1978.

On April 23, the day before the second meeting, Kroll officially resigned as a member of BRNA and in a letter to the Hospital's personnel office stated, "There has been no representation for Bellwood General Hospital for the past several months now." Another nurse, Margaret Benton, conveyed a similar sentiment to the personnel director.

Under date of April 28, 1978, Jiannino called a second meeting of the Bellwood nurses to discuss the contract negotiations and ask for suggestions. In the letter inviting the nurses to the meeting, Jiannino noted that since the date of the election, the turnover of nurses at the Hospital had been approximately 70% and that "practically all of the (BRNA) officers and representatives have terminated rather than accept the Bellwood environment." The letter continued . . . UNAC is not a typical labor organization. UNAC is a program for, and an assistance to, Registered Nurses in the operation and maintenance of their own labor organization. Bellwood Registered Nurses Association is such a device. But in fact, the RN's are doing nothing for themselves, and consequently, management seems to be prevailing by osmosis.

Only one employee, McGowan, attended the meeting and she indicated to Robertson that the Union "had no support" at the Hospital. Information about the poor attendance at the meeting, Kroll's resignation and remarks, Benton's and McGowan's sentiments and the poor attendance at the prior Union meeting were conveyed to Bohard.

On May 18, 1979, the Hospital cancelled the scheduled May 19 meeting by telegram to the Union and asserted its "good faith doubt" of the Union's majority status. This telegram was the last communication between the parties but was not the basis of the Board's order. Rather, the Board held that the Hospital effectively withdrew recognition from the Union on April 13 and at that time did not possess sufficient objective evidence to support its alleged "good faith doubt."

An employer's refusal to bargain with an established union can be justified on at least two grounds: 1) that the union no longer represents a majority of the employees (to bargain with a minority union is, in fact, a violation of the Labor Relations Act, 29 U.S.C. §§ 158(a)(2), (a)(3), NLRB v. Hi-Temp, 503 F.2d 583 (7th Cir. 1974)); or 2) that the employer possesses a "good faith doubt" that the Union continued to represent a majority of the employees. Orion Corp. v. NLRB, 515 F.2d 81 (7th Cir. 1975). Though the Hospital in this case, by alleging that the Union was "defunct," has attempted to justify its failure to bargain on both grounds, we see no reason to discuss the applicability of the first justification in light of our disposition of the issues regarding the second.

A claim of "good faith doubt" must satisfy an objective test although subjective evidence may be used to bolster the employer's argument. Orion, supra at 85. The standard is "whether there is sufficient evidence to cast serious doubt on the Union's majority." NLRB v. Tahoe Nugget, Inc., 584 F.2d 293, 297 n.13 (9th Cir. 1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979). "(G)ood faith is demonstrated when the employer is aware of facts manifesting lack of Union support and employer misconduct did not contribute to the loss of support." Id. at 300. The evidence supporting the good faith doubt must be clear, cogent, and convincing. Orion, supra at 85.

The Board utilizes various presumptions when determining whether to issue bargaining orders in the present situation. For example, during the initial year of certification, there is ordinarily an irrebuttable presumption of continued union majority status. Brooks v. NLRB, 348 U.S. 96, 98, 75 S.Ct. 176, 178, 99 L.Ed. 125 (1954); NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 279 n.3, 92 S.Ct. 1571, 1577 n.3, 32 L.Ed.2d 61 (1972). A similar presumption applies during the term of a collective bargaining agreement. Pioneer Inn Associates v. NLRB, 578 F.2d 835, 838 (9th Cir. 1978)....