Evergreen Healthcare, Inc. v. N.L.R.B., s. 95-6039

• Decision Date: 17 January 1997
• Docket Number: Nos. 95-6039,95-6193,s. 95-6039
• Citation: 104 F.3d 867
• Parties: 154 L.R.R.M. (BNA) 2212, 133 Lab.Cas. P 11,757 EVERGREEN HEALTHCARE, INC., d/b/a Willow Ridge Living Center, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 867

104 F.3d 867

154 L.R.R.M. (BNA) 2212, 133 Lab.Cas. P 11,757

EVERGREEN HEALTHCARE, INC., d/b/a Willow Ridge Living Center, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 95-6039, 95-6193.

United States Court of Appeals Sixth Circuit.

Argued Oct. 3, 1996.

Decided Jan. 17, 1997.

David W. Miller (argued and briefed), Todd M. Nierman, Baker & Daniels, Indianapolis, IN, for petitioner/cross-respondent.

Aileen A. Armstrong, Deputy Associate General Counsel, Charles P. Donnelly, Jr. (briefed), William M. Bernstein, Steven F. Rappaport (argued), N.L.R.B., Appellate Court Branch, Washington, DC, for respondent cross-petitioner.

Before: KENNEDY, JONES, and DAUGHTREY, Circuit Judges.

KENNEDY, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. JONES, J. (pp. 879-880), delivered a separate opinion concurring in part and dissenting in part.

KENNEDY, Circuit Judge.

Petitioner, Evergreen Healthcare, Inc., seeks review of a National Labor Relations Board supplemental decision and order finding Evergreen Healthcare committed unfair labor practices in violation of Sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1). The National Labor Relations Board cross-petitions for enforcement of its order. For the reasons set forth below, we GRANT the petition for review and DENY the Board's cross-application for enforcement.

I.

Evergreen Healthcare, Inc. operates Willow Ridge Living Center, a long-term care nursing facility in Fort Wayne, Indiana. Willow Ridge employs a non-supervisory staff totaling fifty-five employees. The non-supervisory staff consists of nurse aides, dietary aides, housekeeping aides, and activity aides; the non-supervisory staff are supervised by seventeen licensed and/or registered nurses. ¹

In the Spring of 1990, Lois Dibble, a supervisor employed at Willow Ridge, contacted the President of District 1199 of the Indiana/Iowa Union of Hospital & Health Care Employees, SEIU, AFL-CIO ("Union") and commenced an organizational effort among Willow Ridge employees in support of Union 1199. Dibble met with Alice Bush, the President of the Union, in April, 1990 to discuss the structure of Willow Ridge and the process of unionizing. The same month, Dibble and Aaron Shultz, also a supervisor, met with Bush and discussed Willow Ridge employees' wages, benefits, and job security.

Shortly after these two meetings with Bush, Dibble and Shultz were terminated. Dibble was terminated on April 25, 1990; Shultz was discharged on May 31, 1990. ² On June 11, 1990, the Union filed an unfair labor practice charge with the National Labor Relations Board charging that the discharges of Dibble and Shultz were unlawful. ³

In early June, 1990, Bush assembled an organizing committee consisting of supervisory and non-supervisory employees to assist in the election of the Union by the forty-eight member bargaining unit. The supervisory members of the committee were Connie Ayres, Nancy Jehl, Brenda Hemrick, and Dawn Barton. Approximately seventeen non-supervisory employees were members of the committee. Each member of the committee was given a list of employees to whom they were to give information about the campaign.

Beginning in June, 1990, the Union held regular campaign meetings to garner support among the Willow Ridge employees; nine of the ten to eleven meetings were held at supervisors' homes. Eight of these meetings were held at the home of Shultz and Ayres despite Schultz's discharge in May, 1990. One meeting was held at Hemrick's home. During these organizational meetings, Bush instructed the committee on methods of getting employees interested in the Union 1199; she suggested the committee encourage employees to attend meetings, make telephone calls and visits to employees' homes, and engage in discussions during work breaks. These organizational meetings took place through election day on July 26, 1990.

Also in early June, 1990, the committee engaged in an effort to accumulate authorization cards for the Union. Several non-supervisory aides signed cards at the home of Ayres and Shultz while Ayres and Jehl were present. To garner authorization cards from employees who did not sign cards at Ayres' home, Shultz made housecalls to employees along with a Union official and other employees. Dibble, as well, made housecalls to aides. During one housecall to Nurse Aide Bertha Morgan by Dibble and Shultz, Morgan refused to sign an authorization card. Jehl telephoned Morgan asking "in a very rude voice ... are you going to sign that card or are you not." Morgan answered that she "did not know," to which Jehl responded, "[Jehl and other supervisors] [will] be over [your] house later on that evening." When Jehl and Hemrick arrived at Morgan's house that evening, Morgan signed the card. During this card "blitz," Ayres and Hemrick, in particular, were widely recognized by the employees as leading supporters of Union 1199.

On June 5, 1990, Bush, Shultz, Ayres, Hemrick, Jehl, Barton, and approximately twenty to twenty-five employees attended a meeting at Willow Ridge. At that meeting Hemrick announced to Willow Ridge Administrator Rick Oros that Union 1199 sought to be the collective bargaining agent for supervisory and non-supervisory staff at Willow Ridge.

From early June until the election, on July 26, 1990, the committee engaged in several other activities to garner support for the Union. For example, Bush furnished campaign buttons to Ayres, Jehl, Hemrick, and Barton to distribute to employees. Ayres, Jehl, Hemrick, and Barton wore their own campaign buttons to work on several occasions and Ayres distributed buttons to approximately seven non-supervisory employees. When Ayres offered buttons to employees, the employees understood that Ayres intended that they be worn. Nurse Aide Jacqueline Drake testified that she did not want to wear a campaign button but she accepted one to "get them off my back." Ayres handed a button to Nurse Aide Steve White and "told him to wear it and help boost the union." Jehl asked one nurse aide why she was not wearing a campaign button.

During the campaigning, several of the supervisors told non-supervisory staff that supporting the Union would result in various benefits to the nurse aides. For example, Ayres told employees that a vote for 1199 would result in "better wages, benefits, and more people to staff the facility," and "the way to get increased wages and improved benefits with more insurance benefits" was to vote for 1199. Ayres also announced that supporting 1199 "would [result in] better staffing" for employees. Supervisor Jehl told several employees that if they voted for the Union they would get better wages, better benefits, better working conditions and more staffing. Jehl solicited an authorization card from one non-supervisory employee while informing her that the Union could get the employees better wages and benefits.

Additionally, several supervisory nurses, including Ayres, Jehl, Hemrick, and Barton, distributed Union literature to non-supervisory employees at Willow Ridge. On one occasion, Ayres distributed literature to as many as twelve non-supervisory employees outside the entrance to the facility. While the literature was handed out, Union President Bush stood across the street and photographed the distribution. Ayres and Hemrick distributed literature on several other occasions inside Willow Ridge.

During the course of the campaign, the organizing committee sought the attendance of non-supervisory employees at campaign meetings. These meetings were attended by Ayres, Jehl, Dibble Shultz, Hemrick, and Barton. Hemrick, Ayres, and Jehl personally extended invitations to several nursing aides. On at least two occasions, members of the organizing committee offered nurse aides transportation to meetings if they wanted to attend. Approximately ten meetings were held prior to the election. The majority of these meetings were held at the home of Ayres and Shultz. During the meetings, Jehl and Ayres were particularly vocal in their support of Union 1199.

On the day of the election, the organizing committee made an effort to learn which employees had voted and how they voted. For instance, Jehl asked one dietary aide if he had voted yet. Similarly, Ayres asked a nurse aide if she had voted for the Union. When she asked, Ayres noted, "we [would] have a lot of benefits if [you] would vote for the union." The nurse aide, in response, testified that she "didn't want to get mixed up in [things] like this because the only reason I went along with them was they was my co-workers and I wanted to be able to work there." On election day, Jehl offered nurse aide Drake, also a Union supporter, transportation to work. Jehl had never made such an offer to Drake before.

On June 5, 1990, in the midst of the campaigning, the Union filed a petition with the National Labor Relations Board ("NLRB") seeking to represent supervisory and non-supervisory employees at Willow Ridge. Evergreen challenged the Union's inclusion of the nurse supervisors; accordingly, the Union amended its petition to omit the nurse supervisors. While the petition seeking to represent the non-supervisory employees was pending, the Union filed a petition seeking to represent the supervisory nurses.

On July 26, 1990, the NLRB conducted the election among the non-supervisory employees. The Union prevailed by a vote of thirty to fifteen. It was not until after the election that the NLRB Regional Director issued its decision finding that the Willow Ridge nurses were supervisors within the meaning of Section 2(11) of the National Labor Relations Act, as amended, 29 U.S.C. § 152(11)(1973). The Board sustained the dismissal of the election petition on January 14, 1991.

Evergreen objected to the election but, on November 6, 1992, the NLRB Hearing Officer overruled the objections and recommended certification...