Eisenberg For and on Behalf of N.L.R.B. v. Wellington Hall Nursing Home, Inc.

• Decision Date: 30 June 1981
• Docket Number: Nos. 81-1081,81-1082,s. 81-1081
• Citation: 651 F.2d 902
• Parties: 107 L.R.R.M. (BNA) 2958, 91 Lab.Cas. P 12,841 Arthur EISENBERG, Regional Director of the Twenty-second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD v. WELLINGTON HALL NURSING HOME, INC. Appeal of the NATIONAL LABOR RELATIONS BOARD. Arthur EISENBERG, Regional Director of the Twenty-second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD v. WELLINGTON HALL NURSING HOME, INC., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 902

651 F.2d 902

107 L.R.R.M. (BNA) 2958, 91 Lab.Cas. P 12,841

Arthur EISENBERG, Regional Director of the Twenty-second

Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD v. WELLINGTON HALL NURSING HOME, INC.

Appeal of the NATIONAL LABOR RELATIONS BOARD.

Arthur EISENBERG, Regional Director of the Twenty-second

Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD v. WELLINGTON HALL NURSING HOME, INC., Appellant.

Nos. 81-1081, 81-1082.

United States Court of Appeals Third Circuit.

Argued May 19, 1981.

Decided June 17, 1981.

As Amended June 30, 1981.

Murray, Granello & Kenney, Little Silver, N.J., for Wellington Hall Nursing Home, Inc.; James P. Granello, Little Silver, N.J. (argued), of counsel; Stephen R. Fogarty, Little Silver, N.J., on the brief.

William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Harold J. Datz, Associate Gen. Counsel, Joseph E. Mayer, Asst. Gen. Counsel, Joseph P. Norelli, Deputy Asst. Gen. Counsel, Sherrian Knight, Atty., (argued), N.L.R.B., Washington, D.C., for N.L.R.B.

Before GIBBONS, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal by the Regional Director of the Twenty-second Region of the National Labor Relations Board on the Board's behalf from an order of the District Court of the District of New Jersey denying in part a petition, pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j), for a temporary injunction pending Board resolution of unfair labor practice charges. ¹ The employer, Wellington Hall Nursing Home, Inc., cross appeals from the same order to the extent that it granted injunctive relief. On the Board's appeal we reverse and remand for the entry of an order reinstating certain employees. On the employer's cross-appeal we affirm.

I.

Wellington Hall owns and operates a nursing home in Hackensack, New Jersey. On October 1, 1976, Local 1115 Nursing Home & Hospital Employees Union, Division of 1115 Joint Board (the Union) was certified by the Board as the exclusive bargaining representative of approximately 85 of Wellington Hall's service and maintenance employees. The certification did not lead to a mutually satisfactory collective bargaining relationship, and beginning in October 1976 the Union filed a series of unfair labor practice charges alleging refusal to bargain and various forms of retaliations for and threats about employees engaging in protected activity. Several of the Union's charges resulted in unfair labor practice hearings before the Board, and at least two Board orders against Wellington Hall were enforced by this court. ² One of our judgments, dated December 5, 1979, enforced a Board order that Wellington Hall bargain in good faith with the Union and refrain from interfering with, restraining or coercing employees in the exercise of rights protected by section 7 of the Act, 29 U.S.C. § 157. See Wellington Hall Nursing Home, Inc., 240 N.L.R.B. 639 (1979), enforced, NLRB v. Wellington Hall Nursing Home, Inc., No. 79-1415 (3d Cir. Dec. 5, 1979). Additional unfair labor practice charges were made thereafter. Those giving rise to this appeal grow out of the Union's attempt to bargain. On June 9, 1980, the Union initiated a request for a bargaining meeting, offering alternative dates. Wellington Hall indicated these were inconvenient and suggested other dates. While negotiations over a time for a bargaining session were going on, the Union held a meeting of bargaining unit members to discuss demands and designate an employee negotiating committee. A bargaining meeting finally was scheduled for June 25, 1980, but prior to that time several of the employees named by the Union as members of the employee negotiating committee were discharged. Additional employees were discharged after June 25. In addition, Wellington Hall discharged other employees who had attended the Union meeting, or solicited employees to attend. On June 24, Wellington Hall cancelled the June 25 scheduled meeting. It also cancelled a subsequently scheduled August 28 meeting. The excuses offered in each instance fail to mitigate the effect of employer resistance, especially in light of the totality of the circumstances. The Union filed unfair labor practice charges with the Board with respect to the employee discharges, and a complaint and notice of hearing issued. The complaint alleges that the employees were discharged because they engaged in, or sought to engage in concerted activities for the purposes of collective bargaining or mutual aid and protection. Wellington Hall Nursing Home, Inc., Case No. 22-CA-10108 (Sept. 5, 1980).

On October 8, 1980, the Regional Director filed in the District Court a petition for an injunction under section 10(j) of the Act, setting forth the appropriate jurisdictional facts, appending a copy of the unfair labor practice complaint about employee discharges pending before the Board, and alleging that he has reasonable cause to believe the unfair labor practices have been committed and are likely to be continued. On the return of an order directing Wellington Hall to show cause why a temporary injunction should not issue the court heard testimony, and on November 18, 1980 it entered the order from which both parties appeal. The court restrained Wellington Hall from discharging employees in the bargaining unit without first giving written notice to the employee, the Union, and the Board. The order gives the Board and the Union five business days to object to any discharge and to request that a disputed discharge be referred to a special master for resolution. Wellington Hall's appeal puts the injunction in issue. The court refused to order reinstatement of the eight employees whose discharge is the subject of the pending Board complaint. The Board appeal seeks a reversal of that refusal. On February 4, 1981 a panel of this court granted the Board's motion for an injunction pending appeal, directing reinstatement of five of the discharged employees.

II.

Wellington Hall contends that the district court erred in holding that the regional director had demonstrated his reasonable cause to believe that the elements of an unfair labor practice are present. Thus, it contends, no injunction should have issued. In Eisenberg v. Hartz Mountain Corp., 519 F.2d 138, 143 (3d Cir. 1975), we held that reasonable cause to believe a violation of the act has occurred, a standard for injunctive relief originally developed in cases arising under section 10(l ) of the Act, is also applicable to section 10(j) proceedings. The trial court's determination that this low threshold of proof was met is reviewed by a clearly erroneous standard. Angle v. Sacks, 382 F.2d 655 (10th Cir. 1967). The trial court found that the Board had reasonable cause to believe the discharges were motivated by anti-union animus. There is evidence of a history of employer resistance to collective bargaining. Each employee discharged was an active union supporter, and five of the eight who were discharged were designated members of the union-sponsored six employee negotiating committee. ³ Wellington Hall maintains all were discharged for poor work quality, tardiness, and absenteeism. However, many of the problems referred to in its notices of discharge were remote in time or of minimal gravity. Thus the Board could reasonably believe that the notices were records compiled as a basis for discharge from payroll records and time cards long after the fact.

Wellington Hall relies on caselaw dealing with mixed motive discharges, such as Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363, 368 (3d Cir. 1978). The cases relied on, however, are all cases reviewing final Board action, in which we review for substantial evidence in the record as a whole of the employer's anti-union motivation. In a section 10(j) or 10(l ) case the court need not, indeed should not, make a finding of employer motivation. It need only find a reasonable cause for belief that there was such a motivation. That standard of proof is fully satisfied on this record.

III.

Although the district court properly held that the Board satisfied the reasonable belief standard for section 10(j) relief, and properly enjoined future retaliatory discharges or intimidations of union supporters, it refused to order reinstatement of the eight discharged employees. In doing so it relied upon the provision in section 10(j), found also in section 10(l ), that, in the public interest, the court may grant "such temporary relief or restraining order as it deems just and proper." The denial of reinstatement was not predicated on a finding that the Board would...