First Healthcare Corp. v. N.L.R.B.
| Decision Date | 19 September 2003 |
| Docket Number | No. 01-2478.,No. 01-2673.,01-2478.,01-2673. |
| Parties | FIRST HEALTHCARE CORPORATION, d/b/a Hillhaven Bakersfield, d/b/a Hillhaven Highland House, d/b/a Healthcare Corporation in the State of California, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Service Employees International Union, Local 399, Intervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John V. Nordlund (argued and briefed), Fairfax, California, Leslie M. Mitchell (briefed), Law Office of Leslie Mitchell, Sacramento, California, for Petitioner.
Jill Griffin (argued and briefed), Aileen A. Armstrong (briefed), Frederick C. Havard (briefed), National Labor Relations Board, Office of the General Counsel, Washington, DC, for Respondent.
Andrew L. Strom (argued and briefed), Seiu Local 32BJ, Legal Department, New York, New York, Craig Becker (briefed), Chicago, Illinois, for Intervenor.
Before CLAY and GIBBONS, Circuit Judges; DUGGAN, District Judge.*
CLAY, J., delivered the opinion of the court, in which DUGGAN, D.J., joined. GIBBONS, J. (pp. 545-550), delivered a separate dissenting opinion.
In Case No. 01-2478, Petitioner, First Healthcare Corporation, d/b/a Healthcare Corporation in the State of California, d/b/a Hillhaven Highland House, d/b/a Hillhaven Bakersfield, petitions this Court for review of the September 30, 2001, decision and order from Respondent, the National Labor Relations Board ("NLRB" or "the Board"), finding that Petitioner violated section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 141 et seq., by denying access to its property to persons who were employed at another facility owned by Petitioner, and by maintaining a policy of denying off-duty employees access to the outside non-working areas of the facilities where they were employed. In Case No. 01-2673, the Board seeks this Court's enforcement of the September 30, 2001, decision and order.
Because there is substantial evidence to support the Board's findings of fact, and because there are no errors of law1 in the decision, we DENY Petitioner's request for review of the Board's September 30, 2001, decision and order in Case No. 01-2478, and GRANT the Board's application for enforcement of the order in Case No. 01-2673.
This case originated with unfair labor practice charges filed against Petitioner by the Service Employees International Union and two of its affiliates, Local 399 and Local 22 (collectively "the Union"), between January 3 and September 22, 1995. (NLRB Cases 31-/CA-20973, 31CA-21091, and 31CA-21551.) The Board subsequently consolidated the cases. The parties submitted the consolidated case directly to the Board for a decision based on a stipulation of facts on December 4, 1995. Thereafter, on September 30, 1996, the Board ruled that it had improvidently accepted the stipulation, and remanded the case for a trial to determine the object of the trespassory conduct at issue.
On June 8-11, 1998, a trial was held before Administrative Law Judge ("ALJ") Steven Charno, and on July 21, 1998, the ALJ issued a decision from the bench finding that Petitioner had violated section 8(a)(1) of the Act. All parties filed timely exceptions to the ALJ's decision with the Board. On September 30, 2001, the Board issued its decision which is now before the Court on petition for review by Petitioner and on application for enforcement by the NLRB. See First Healthcare Corp., 336 N.L.R.B. No. 62, 168 L.R.R.M. (BNA) 1368, 2001 WL 1685280 (Sept. 30, 2001). Pursuant to this Court's March 10, 2003, order, the Union's motion to participate in oral argument has been granted.
Petitioner operates nursing homes at various locations in California. The Union represents employees at some of Petitioner's nursing homes, while some of Petitioner's homes operate as nonunion facilities. Since January of 1990, successive employee handbooks for Petitioner's nonunion service staff in California have included a solicitation and distribution rule with two provisions. The first provision states: "When you are off-duty, don't return to the facility unless you are picking up your paycheck or are making an authorized visit." (J.A. at 848.) An "authorized visit" was defined by Petitioner as a return to the facility for "a work/job-related reason." (J.A. at 686.) The second provision states: "[N]on-employees are not allowed to solicit or distribute material while on facility property." (J.A. at 679 n. 5.) Petitioner has interpreted this latter provision to apply to employees who solicit and distribute at facilities other than the facility to which the employees are assigned to work (a/k/a "offsite employees").
On September 17, 1994, Petitioner's employee Alfredo Chavez met with three non-employee union organizers at Petitioner's Highland House facility just prior to the 3:00 p.m. shift change. Chavez was employed by Petitioner as a janitor at Petitioner's Alta Vista facility. Chavez walked to the parking lot outside the employees' entrance at the back of the Highland House facility with flyers that were printed in both Spanish and English. The flyers, which were captioned "Let's Get Together," pointed out the benefits of union membership, solicited the recipients to join the Union, and contained a postage prepaid card which could be returned for additional "information about joining the Service Employees International Union." (J.A. at 687, 818-19.) Chavez identified himself as one of Petitioner's employees, and spoke with approximately four employees about the value of the Union, before he was joined by union organizer Blanca Correa.
Correa and Chavez had spoken to four more employees when they were approached by Highland House administrator, Carol Bowman-Jones. Both Correa and Highland House employee Bill Harvey identified Chavez as one of Petitioner's employees. Nonetheless, Bowman-Jones ordered Chavez to leave the premises, threatening to call the police if he refused to leave. Chavez complied with Bowman-Jones' order to leave the premises.
About four months later, at approximately January 26, 1995, a group of non-employee union organizers and offsite employees assembled at the Highland House facility for the purpose of handing out union literature which 1) disputed Petitioner's prior claim that the union made no promises "it could not keep," and 2) invited Highland House employees to join the Union. (J.A. at 687.) It is uncontroverted that approximately forty-five minutes later, Jack Quiroz, the maintenance supervisor at Highland House, was observed shutting the facility's back gate which required that the gate thereafter be manually opened to allow cars to enter or exit the facility through that gate. The main entrance and exit to the facility were at the front of the building.
At approximately 2:00 p.m. on July 12, 1995, Jenny Davenport, an employee of Petitioner's Alta Vista facility, along with union organizers Gary Guthman and Karla Zombro, spoke with employees at Petitioner's Bakersfield facility (also referred to as the California Care Center facility) about joining the Union. Davenport was wearing her badge issued by Petitioner which bore Davenport's name and Petitioner's logo. Davenport took some of the union literature and went to an outdoor break area next to the parking lot on Petitioner's premises, and began talking with a Bakersfield employee about the benefits of unionization. Davenport also carried leaflets that described the value of unionization and urged employees to make inquiries on "`how to get involved in fighting for union rights for your facility.'" (J.A. at 813.)
Shortly thereafter, Maria Favereaux, business manager at Petitioner's Bakersfield facility, came out of the facility and approached Davenport. Davenport informed Favereaux that she was employed by Petitioner and asserted a legal right as one of Petitioner's employees to be on the premises. Favereaux went inside the facility and telephoned Petitioner's legal counsel. Favereaux then emerged outside with environmental services manager Tim Haub, and Favereaux instructed Davenport to leave the Bakersfield premises. As Haub and Favereaux escorted Davenport off of the premises, they were approached by Guthman, who questioned the decision to deny Davenport access to the outside non-working areas. Haub responded that employees could not distribute materials on Petitioner's property "unless they had the approval of Management." (J.A. at 60, 687.)
Based on the foregoing facts, the Board agreed with the ALJ and found that Petitioner had violated section 8(a)(1) of the Act by enforcing against off-site employees its solicitation and distribution policy prohibiting non-employees from any solicitation and distribution at Petitioner's facilities. The Board also affirmed the ALJ's finding that Petitioner had violated section 8(a)(1) of the Act by maintaining, at least until July 12, 1995, a rule that prohibited off-duty employees from returning to the non-work areas of the facilities where they worked to engage in organizational activity unless "authorized" by Petitioner.
The Board ordered Petitioner to cease and desist from engaging in these unfair labor practices, particularly with respect to Petitioner's enforcing its no-solicitation rule in a manner so as to deny its off-site employees access to parking lots and other non-work areas for the purpose of engaging in union solicitation and/or distribution. The Board also directed Petitioner to rescind the rule contained in its employee handbook stating that employees who are off-duty may not "return to the facility unless [they] are picking up [their] pay-check or making an authorized visit" and to notify employees of this recision. (J.A. at 685.)...
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