D'Youville Manor, Lowell, Massachusetts, Inc. v. N.L.R.B.

• Decision Date: 13 November 1975
• Docket Number: No. 75-1140,75-1140
• Parties: 90 L.R.R.M. (BNA) 3100, 77 Lab.Cas. P 11,151 D'YOUVILLE MANOR, LOWELL, MASSACHUSETTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 3

526 F.2d 3

90 L.R.R.M. (BNA) 3100, 77 Lab.Cas. P 11,151

D'YOUVILLE MANOR, LOWELL, MASSACHUSETTS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 75-1140.

United States Court of Appeals First Circuit.

Argued Sept. 10, 1975.

Decided Nov. 13, 1975.

Reginald H. Howe, Boston, Mass., with whom John A. Perkins and Palmer & Dodge, Boston, Mass., were on brief, for petitioner.

Allison W. Brown, Jr., Washington, D.C., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Elliott Moore, Deputy Associate Counsel, and John F. Depenbrock, Jr., Washington, D.C., were on brief, for respondent.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and THOMSEN, ^* Senior District Judge.

COFFIN, Chief Judge.

This case arises from an organizational campaign conducted by District 1199 Massachusetts, National Union of Hospital and Health Care Employees (the Union) at D'Youville Manor, Lowell, Massachusetts, Inc. (the Manor), a nursing home affiliated with the Sisters of Charity, Ottawa, Canada. In an unfair labor practice proceeding, the National Labor Relations Board found that the nursing home violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a), by announcing a seniority pay scale and insurance benefits with the purpose of discouraging unionization, and by threatening and unlawfully reprimanding an employee for exercising rights protected by § 7 of the Act. The Board also found a violation of § 8(a)(3), 29 U.S.C. § 158(a)(3), in the discharge of an employee for engaging in union activities. Pursuant to § 10(f) of the Act, 29 U.S.C. § 160(f), the Manor petitions for review of all these findings, and, in addition, appeals from the denial of prehearing discovery. The Board has brought a cross application for enforcement of its cease and desist orders, and its order of reinstatement and back pay.

The § 8(a)(1) charge involving improper announcement of pay increases and benefits arises in peculiar circumstances. On March 25, 1974, during a period of intense union organizational activity, the Board of Trustees of the Manor gave tentative approval to the increases. The announcement and implementation of these changes were delayed subject to the approval of legal counsel. In the succeeding week, the employees requested to be informed of the action of the Trustees. On April 3, the Manor announced the tentative decision, and on April 22, it announced that the increases would be implemented. The Board found that the announcement of these benefits was calculated to influence employees to withdraw support for the union, and therefore, violated the Act.

In determining the propriety of an increase in benefits during the pendency of a union organizational campaign, both the date of the decision by management and the date of the announcement are relevant. NLRB v. Rexall Chemical Co., 418 F.2d 603 (5th Cir. 1969). See NLRB v. Styletek, Division of Panel-Bradford, Inc., 520 F.2d 275 (1st Cir. 1975). Here, there was sufficient evidence on the record as a whole to support the Board's finding that the Manor's decision to grant seniority wage increases and insurance premium benefits had the purpose of discouraging unionization.

The Manor asserts that the termination of federal restraints under the Cost of Living Council, which was expected on April 30, 1974, provided a proper business reason for granting the increases at that time. Once an employer produces a proper business justification, the ultimate burden is on the Board to show that the company was primarily motivated by an anti-union purpose. NLRB v. Gotham Industries, Inc., 406 F.2d 1306 (1st Cir. 1969). While the impending relaxation of federal controls gives some legitimacy to the Manor's decision, other factors belie this justification. The cost of living guidelines never covered the many employees at the Manor who were earning less than $3.50 an hour. Moreover, the Manor had until recently resisted requests for these benefits on the grounds that its income was limited by state ratemaking regulation, and that the books showed a substantial deficit. Nothing in the record suggests that the financial condition of the Manor had improved when the decision was made.

The evidence presented at the hearing also tended to show that there was an intimate relationship between the wage and benefit issue and the campaign for unionization. For example, discussion of the increases and the union campaign occurred at the same winter meetings between employees and management.

The circumstances of the announcement of the increases, however, tends to negate coercive conduct on the part of the Manor. The administrative law judge properly acknowledged that the Manor could complain, with some merit, that the announcement and implementation of the proposed increases were prompted by the employees and the union. Nevertheless, it was well known within the nursing home, at the time of decision, that the subject of increases would be discussed at the regular Board of Trustees meeting in March. The Manor could not have reasonably assumed that there would be no employee pressure to learn of that meeting's outcome. The onset of predictable pressure after decision did not, as a matter of law, immunize the vulnerable decision to grant the increases from the strictures of the Act. We therefore hold that the Board could properly infer from the evidence on the record that the announcement of the wage and benefit increases was calculated to influence employees to withdraw support from the union.

The second § 8(a)(1) charge involves a written reprimand to Alan Solomont, an orderly at the nursing home, for his part in an incident involving the transfer of a union card during the working time in a working area of the home. At various other times, Solomont was orally threatened with disciplinary reprimands for solicitation activities in nonworking areas during nonworking time. In defense of the statutory charge, the Manor contends that it acted lawfully pursuant to its written rule which prohibits all unauthorized solicitation on the premises.

A rule prohibiting solicitation in nonworking time is presumed invalid absent some special justification. Republic Aviation Corp. v. NLRB,324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). The Manor suggests that the rule was not enforced as written, and solicitation was permitted in nonworking areas of the nursing home frequented only by employees. If this were so, evidence of the special requirements of a nursing home may well have rebutted the presumption of invalidity. See NLRB v. Summit Nursing Convalescent Home, 472 F.2d 1380 (6th Cir. 1973), denying enf. to 196 N.L.R.B. No. 110 (1972); Guyan Valley Hospital, 198 N.L.R.B. No. 28 (1972). The administrative law judge concluded, however, that the rule was administered and applied to union activities as broadly as it was written. We find this ruling to be supported by the evidence on the record as a whole. Consequently, we affirm the Board's determination that the rule could not constitute a valid defense to the § 8(a)(1) charge, and the finding that the Manor violated the Act in issuing the contested reprimand. ¹

This unlawful reprimand constituted the second written warning issued to Solomont during his employment at the Manor. Approximately one month later he was terminated under a long-standing rule authorizing discharge for accumulation of three written reprimands within a twelve month period. The general counsel charged, and the Board found, that Solomont was discharged...