Dequeen General Hosp. v. N.L.R.B.
| Decision Date | 18 September 1984 |
| Docket Number | No. 82-2247,82-2247 |
| Parties | 117 L.R.R.M. (BNA) 2534, 101 Lab.Cas. P 11,186 DeQUEEN GENERAL HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for respondent.
John D. Davis, Coleman, Gantt, Ramsay & Cox, Pine Bluff, Ark., for petitioner.
Before LAY, Chief Judge, FAGG, Circuit Judge, and NICHOL, * Senior District Judge.
DeQueen General Hospital petitions this court to set aside an order of the National Labor Relations Board entered October 5, 1982, and the Board cross-petitions for enforcement of its order. The Board found that DeQueen committed numerous violations of sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and (3). DeQueen was ordered to cease and desist from engaging in a number of unfair labor practices, to offer immediate reinstatement to four employees who were discharged and to make them whole for any loss of earnings they suffered, to post appropriate notices, and lastly, to bargain with the Union. After a careful review of the record, we find that there is substantial evidence on the record as a whole to support the Board's order.
In February of 1980, the Professional Division, Retail Clerks Union, Local 1583, United Food and Commercial Workers International Union, AFL-CIO, began an organizational campaign at DeQueen General Hospital. On March 18, 1980, the Union filed two representation petitions--one for a unit of registered nurses (Unit A) and one for a unit of all full-time and regular part-time technical employees (Unit B). At that time, the Union held signed authorization cards for 7 of the 13 employees in Unit A and for 93 of the 160 employees in Unit B. On May 7, 1980, an election was held in each unit, with the Union losing in Unit A by a margin of 7-5, and losing in Unit B by a margin of 94-49. The Union filed numerous unfair labor practice charges against DeQueen, calling into question its conduct both before and after the May 7 elections.
The charges were tried before an administrative law judge (ALJ), and after DeQueen filed timely objections to the ALJ's decision, the Board affirmed it with minor modifications. On appeal DeQueen challenges the Board's findings with respect to a number of the 8(a)(1) violations 1 and with respect to all four of the discharges. DeQueen further challenges the Board's issuance of a Gissel 2 bargaining order compelling it to bargain with the employees in Units A and B.
Section 7 of the NLRA guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *." 29 U.S.C. Sec. 157. Under section 8(a)(1) of the Act, it is an unfair labor practice for an employer to interfere with, restrain, or coerce an employee's exercise of section 7 rights. 29 U.S.C. Sec. 158(a)(1). "In evaluating employer conduct * * * the test is not whether an attempt at [interference] has succeeded or failed, but whether 'the employer engaged in conduct which reasonably tends to interfere with, restrain, or coerce employees in the free exercise of their rights under Section 7.' " NLRB v. Intertherm, Inc., 596 F.2d 267, 271 (8th Cir.1979) (quoting Russell Stover Candies, Inc. v. NLRB, 551 F.2d 204, 208 (8th Cir.1977)). As a reviewing court, we must enforce the Board's determination respecting 8(a)(1) violations if, in considering the record as a whole, the Board's findings are supported by substantial evidence. Universal Camera Corp. v. Labor Board, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); NLRB v. Fixtures Manufacturing Corp., 669 F.2d 547, 550 (8th Cir.1982).
The Board determined that DeQueen violated section 8(a)(1) of the Act by: interrogating employees concerning their union membership, activities, and sympathies without assurances of nonreprisal and without a valid purpose, see NLRB v. Mark I Tune-Up Centers, Inc., 691 F.2d 415, 417 (8th Cir.1982); Intertherm, 596 F.2d at 274 n. 2; NLRB v. North American Manufacturing Co., 563 F.2d 894, 896 (8th Cir.1977); threatening employees with or warning them of reprisals or discharges for their union activities, see NLRB v. Ely's Foods Inc., 656 F.2d 290, 292 (8th Cir.1981); Intertherm, 596 F.2d at 274; threatening employees with closure of the hospital if a union is voted in, see Mark I Tune-Up Centers, 691 F.2d at 416-17; Patsy Bee, Inc. v. NLRB, 654 F.2d 515, 516-18 (8th Cir.1981); R.J. Lallier Trucking v. NLRB, 558 F.2d 1322, 1326-27 (8th Cir.1977); informing employees and creating the impression among employees that their union activities are under surveillance, see NLRB v. Chem Fab Corp., 691 F.2d 1252, 1258 (8th Cir.1982); informing an employee that the employee was being reprimanded because of union activities, see NLRB v. Hitchiner Manufacturing Co., 634 F.2d 1110, 1113 (8th Cir.1980); informing employees that bargaining will be from scratch and that any benefits negotiated would not be as good as benefits already enjoyed by the employees, see NLRB v. Suburban Ford, Inc., 646 F.2d 1244, 1247-49 (8th Cir.1981); Hitchiner Manufacturing, 634 F.2d at 1113; promising employees better working conditions and increased benefits if they stop the union elections or if they do not file objections to the election results, see NLRB v. Rexall Corp., 725 F.2d 74, 76-77 (8th Cir.1984); Ely's Foods, 656 F.2d at 292; Suburban Ford, 646 F.2d at 1247-49; and finally, by issuing a personnel policy and procedural manual that included a rule prohibiting employees from engaging in activities other than assigned duties, see NLRB v. Speed Queen, 469 F.2d 189, 192-93 (8th Cir.1972); Jas. H. Matthews & Co. v. NLRB, 354 F.2d 432, 440-41 (8th Cir.1966).
We find it unnecessary specifically to detail the record testimony supporting the Board's unfair labor practice findings under section 8(a)(1) of the Act. After carefully reviewing the record as a whole, we find substantial support for the Board's findings.
Under section 8(a)(3) of the Act, it is an unfair labor practice for an employer "to encourage or discourage membership in any labor organization" by discrimination in hire or tenure. 29 U.S.C. Sec. 158(a)(3). The Board determined that DeQueen violated sections 8(a)(1) and (3) of the Act by discharging union activists Pat Harris, Mary Margaret Neumeier, Doris Stultz, and Univee Bryson and by reprimanding employee Anita Turner. We find substantial evidence in the record as a whole to support the Board's findings with respect to the 8(a)(3) violations.
Initially, we note that the discharges and Turner's reprimand occurred against a background of demonstrated anti-union animus, including coercive interrogations, threats of reprisal or discharge for engaging in union activities, illegal surveillance, and threats of hospital closure if a union was voted in. The record testimony indicates that hospital administrator Pearce instructed supervisory personnel to use any excuse to "get rid of" union supporters. DeQueen's top management and supervisory personnel were clearly aware that Harris, Neumeier, Stultz, and Bryson were strong union supporters who played an active role in the union's organizational campaign.
In NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), the Supreme Court approved the Board's application of the Wright Line test in "dual motive" discharge cases. Under the Wright Line test, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), the General Counsel has the burden of proving that the employee's protected conduct was a substantial or a motivating factor in the discharge decision. Transportation Management Corp., 103 S.Ct. at 2473. An employer can "avoid being held in violation of Secs. 8(a)(1) and 8(a)(3) [of the Act] by proving by a preponderance of the evidence that the discharge rested on the employee's unprotected conduct as well and that the employee would have lost his job in any event." Id. While the Wright Line test extends to the employer what the Board considers to be an affirmative defense, it "does not change or add to the elements of the unfair labor practice that the General Counsel has the burden of proving * * *." Id. at 2474.
DeQueen alleged that employee Harris, after accepting full-time employment at a nursing home, resigned her full-time position at the hospital and reapplied for unavailable part-time employment. The Board rejected DeQueen's position, finding instead that Harris was fired for having engaged in protected section 7 activity.
On June 15 Harris submitted a written request to her supervisor stating that she "would like to change from permanent full-time status to permanent part-time status starting on the next work sheet." On June 23, Harris's supervisor informed her that her "resignation" of full-time employment effective June 28, 1980, had been accepted and that there were no permanent part-time positions available. The ALJ concluded that "it [was] absurd to [assert] that an employee who requests part-time work is in effect giving the employer an ultimatum that if part-time employment is not granted [she] is resigning." We agree, and consequently find no error in the Board's determination that employee Harris was fired for having engaged in protected section 7 activities.
DeQueen alleged that employee Neumeier was lawfully fired after...
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