Beverly Enterprises, Inc. v. N.L.R.B.
| Decision Date | 09 March 1998 |
| Docket Number | 264,D,Nos. 110,s. 110 |
| Citation | 139 F.3d 135 |
| Parties | 157 L.R.R.M. (BNA) 2649, 135 Lab.Cas. P 10,127, 21 Employee Benefits Cas. 2793 BEVERLY ENTERPRISES, INC., Beverly Health and Rehabilitation Services, Inc., Beverly Enterprises--Connecticut, Inc. d/b/a Greenwood Health Center, Petitioners-Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. ockets 96-4171, 96-4211. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael Flaherty, Jackson, Lewis, Schnitzler & Krupman, White Plains, NY, (Thomas
P. McDonough, Jackson, Lewis, Schnitzler & Krupman, White Plains, NY), for Petitioners-Cross-Respondents.
John D. Burgoyne, Assistant General Counsel; National Labor Relations Board, Washington, DC, (Frederick C. Havard, Supervisory Attorney; National Labor Relations Board, Washington, DC; Frederick L. Feinstein, General Counsel, National Labor Relations Board, Washington, DC; Linda Sher, Associate General Counsel, National Labor Relations Board, Washington, DC; Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, Washington, DC), for Respondent-Cross Petitioner.
Before: MINER and LEVAL, Circuit Judges,and GRIESA, District Judge. *
Petitioners-cross-respondents Beverly Enterprises, Inc., Beverly Health and Rehabilitation Services, Inc., and Beverly Enterprises--Connecticut, Inc. d/b/a Greenwood Health Center petition for review of a decision and order of the National Labor Relations Board ("NLRB") affirming a decision by an Administrative Law Judge ("ALJ"). Respondent-cross-petitioner National Labor Relations Board, by its General Counsel ("General Counsel"), petitions for enforcement of the same decision and order. The NLRB determined that petitioners had engaged in unfair labor practices prior to a representation election, in violation of section 8(a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1). It found (1) that by revealing existing benefits previously concealed, petitioners actually conferred benefits upon employees for the purpose of coercing them to vote against unionization; (2) that petitioners promised an across-the-board wage increase to discourage unionization; and (3) that petitioners solicited a grievance during the union organizational campaign, promised to resolve that grievance, and satisfied that promise. Based on these findings, the NLRB ordered petitioners to cease and desist from the unfair labor practices, post notices of the order and conduct a new election.
For the reasons that follow, we grant the petition for review insofar as the order directs petitioners to cease and desist from unfair labor practices and to post notices.
Beverly Enterprises--Connecticut, Inc., d/b/a Greenwood Health Center ("Greenwood"), is one of many health care facilities operated by Beverly Enterprises, Inc. ("Beverly Enterprises"). Beverly Health and Rehabilitation Services, Inc., is an affiliate of Beverly Enterprises. Greenwood is located in Hartford, Connecticut, and employs approximately 250 employees. It is undisputed that the employees at Greenwood were entitled to a variety of employee benefits, the majority of which were outlined in the Greenwood Health Center Personnel Manual ("Personnel Manual"), which was published in August of 1989. Benefits listed and generally described in the Personnel Manual included: health, life, and dental insurance; a stock-purchase plan; a savings-retirement plan; a discount for relatives of employees admitted to a facility owned by Beverly Enterprises; a tuition reimbursement plan; sick time; holidays; vacation; jury duty compensation; marriage leave; bereavement leave; and paternity leave. Employees were permitted to exchange their holiday, vacation, and insurance benefits for a 10 percent wage increase. Greenwood's administrator, Pamela Miller, did not distribute copies of the Personnel Manual to employees. She did distribute copies to the department heads, who then made them available to the employees for review. 1
In addition to the benefits identified in the Personnel Manual, Greenwood employees were entitled to "regional benefits," which were established by the regional corporate office of Beverly Enterprises. Included among these benefits was a more generous tuition reimbursement plan. Rather than the $750.00 annual tuition reimbursement described in the Personnel Manual, the regional benefits plan allowed up to $1,200.00 in annual tuition reimbursement. Miller admitted that she failed to update the Personnel Manual to include information relating to the regional tuition reimbursement plan. Although Greenwood employees generally were aware of the existence of a tuition reimbursement program, and while some had taken advantage of this benefit, it appears that the additional amount available under the regional benefit was not widely known.
Employees also were entitled to various benefits set forth in the Benefits Administration Policy and Procedures Manual ("Corporate Manual"), which was prepared in 1992 and sent to facility administrators. Some of the benefits listed in the Corporate Manual were duplicative of those listed in the Personnel Manual, such as the health insurance and stock-option plans. However, the Corporate Manual also provided a description of other benefits, such as the Dependent Care Assistance Program ("DCAP"), which provided reimbursement for 20 percent of the cost of care for dependent children and disabled family members, and a 401(k) savings plan that replaced the savings-retirement plan described in the Personnel Manual. The Corporate Manual also contained a page entitled "Benefits at a Glance," which listed and described, among other things, the DCAP, 401(k) plan and the stock-option plan.
According to several employees, the Personnel Manual was generally available for review at nurses' stations. Greenwood also received approximately 100 copies of a bi-weekly newsletter, entitled "Beverly Cares," which occasionally discussed available benefits and encouraged employees to call their facility administrator or human resources representative for additional information. For example, the October 1993 "Beverly Cares" newsletter informed employees that it was time to choose and enroll in benefit plans, including the DCAP and 401(k) plans, and provided a phone number that employees could call with questions. Copies of the newsletter were placed in the reception area for any interested employee or visitor to take. Finally, Beverly circulated notices for posting in the Greenwood facility regarding enrollment in benefit plans, and also informed employees of benefits through the issuance of flyers, brochures, and memoranda.
Under Miller's administration, Greenwood employees complained that management personnel did not provide uniform information about the benefits available to them. There were also allegations that information was concealed from employees, and that some employees were provided with misinformation.
In November of 1993, the New England Health Care Employees Union, District 1199, AFL-CIO (the "Union") began an organizational campaign at Greenwood. At about the same time, Patricia Wilcox, the director of development at Greenwood, asked Greenwood employee Elizabeth Garcia while passing her in the hallway, "[W]hat brought this on?" Garcia took this to be in reference to the union organizational campaign. Garcia responded that the lack of knowledge of the benefits and the favoritism in distributing information motivated the Union organizational campaign. Garcia also testified that Wilcox then responded that she would see what she could do.
The Union officially requested recognition on December 13, 1993. Shortly thereafter, a benefits summary prepared by Wilcox and reviewed by Miller was distributed at the nurses' stations at Greenwood. The summary, with the exception of the first page, was comprised principally of information from the Personnel Manual. Benefits outlined in the summary included: bereavement leave; the employee discount for relatives; jury duty compensation; marriage leave; paternity leave; the $750 tuition reimbursement; and vacation. This summary did not include information on the DCAP, the 401(k) There was some confusion among both employees and management over vacation time, because the summary included a handwritten change of the vesting period for a 3 week vacation from 5 years to 3 years. 2 Greenwood unit coordinator Maria Parks told Garcia that the vesting period was 5 years while Director of Nursing Maria Faria told Garcia she was unsure of the operative vesting period. Garcia then asked Administrator Miller about this benefit and Miller informed Garcia that the vesting period was 3 years. Garcia testified that, after being provided this information, Miller commented, "[s]ee, all you have to do is ask."
plan, the stock-purchase plan, or the regional tuition reimbursement.
Sometime prior to the February 1994 Union representation election, a series of meetings was conducted by Jay Begley, a human resources officer who was put in charge of Greenwood's anti-union campaign management. At those meetings, Begley distributed a second benefits summary, which, unlike the earlier summary, included the "Benefits at a Glance" page from the Corporate Manual describing the DCAP, 401(k) and stock-option plans. According to nurses Patricia Pickus and Donna Nelson, at one meeting Begley and Faria told the employees that Greenwood was also working on a 4 percent, across-the-board raise for the employees. Miller purportedly confirmed the possibility of a raise at that meeting.
At a representation election held on February 17, 1994, the employees rejected Union representation by a vote of 16 to...
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