Glasser v. Heartland - University of Livonia, MI, Case No. 09-10721.

• Decision Date: 07 April 2009
• Docket Number: Case No. 09-10721.
• Citation: 632 F.Supp.2d 659
• Parties: Stephen M. GLASSER, Regional Director of the Seventh Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. HEARTLAND—UNIVERSITY OF LIVONIA, MI, LLC, d/b/a Heartland Health Care Center—University, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

632 F.Supp.2d 659

Stephen M. GLASSER, Regional Director of the Seventh Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. HEARTLAND—UNIVERSITY OF LIVONIA, MI, LLC, d/b/a Heartland Health Care Center—University, Respondent.

Case No. 09-10721.

United States District Court, E.D. Michigan, Southern Division.

April 7, 2009.

COPYRIGHT MATERIAL OMITTED

Darlene M. Haas Awada, National Labor Relations Board, Detroit, MI, for Plaintiff.

Clifford H. Nelson, Jr., Constangy, Brooks, Atlanta, GA, John A. Hubbard, Beals Hubbard, Farmington Hills, MI, for Defendant.

ORDER: (1) GRANTING PETITION FOR PRELIMINARY INJUNCTION UNDER SECTION 10(J) OF THE NATIONAL LABOR RELATIONS ACT; (2) DENYING RESPONDENT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION; AND (3) DECLARING MOOT RESPONDENT'S MOTION TO STRIKE PORTIONS OF AFFIDAVIT

VICTORIA A. ROBERTS, District Judge.

I. INTRODUCTION

Petitioner seeks a preliminary injunction pursuant to section 10(j) of the National Labor Relations Act ("NLRA"), as amended, 29 U.S.C. § 160(j). The Court heard argument on March 31, 2009. The Court GRANTS Petitioner's request and will enter a Preliminary Injunction of limited duration.

Additionally, Respondent moved to dismiss the Petition for lack of subject matter jurisdiction (Doc. # 10), on grounds that it was authorized by the General Counsel for the National Labor Relations Board, and not the Board itself. The Court DENIES that request and joins other districts in holding that § 3(d) of the NLRA, 29 U.S.C. § 153(d), allows the Board to delegate its § 10(j) authority to the General Counsel. See Muffley v. Massey Energy Co., 547 F.Supp.2d 536, 540-42 (S.D.W.Va. 2008), appeal docketed, No. 08-2067 (4th Cir. Sept. 18, 2008); Kentov v. Point Blank Body Armor, Inc., 258 F.Supp.2d 1325, 1327-29 (S.D.Fla.2002); Penello v. Int'l Union, United Mine Workers, 88 F.Supp. 935, 937 (D.D.C.1950); Madden v. Int'l Union, United Mine Workers of Am., 79 F.Supp. 616, 617 (D.D.C.1948); Evans v. Int'l Typographical Union, 76 F.Supp. 881, 886-89 (D.Ind.1948). The Court maintains jurisdiction over the parties and subject matter pursuant to 28 U.S.C. §§ 1331 and 1345, and 29 U.S.C. § 160(j).

Respondent also filed a motion to strike portions of the affidavit of Marcella Clarke, filed in support of the Petition, as inadmissible hearsay (Doc. # 11). For reasons explained below, that motion is MOOT.

II. BACKGROUND

The facts as summarized are taken from the Petition for Preliminary Injunction and the decision of the administrative law tribunal issued on December 22, 2008 ("ALJ Decision").

A. Uncontested Facts

Respondent Heartland—University of Livonia, Michigan, LLC, operates a nursing home in Livonia, Michigan. Since 1988, SEIU Healthcare Michigan ("the Union") is the exclusive collective bargaining representative for Heartland's regular full- and part-time nurse aids, dietary, maintenance and housekeeping employees ("the Unit"). Over the years, Heartland and the Union entered into several collective bargaining agreements ("CBAs"). The most recent CBA ran from May 2004 until April 30, 2007. Upon its expiration, the parties engaged in negotiations, which were still in process when the events giving rise to this Petition occurred.

In November 2007, an employee by the name of Shari Parks circulated a petition stating that the employees who signed it no longer wanted to be part of the Union ("Decertification Petition"). The Decertification Petition collected 26 signatures, and Ms. Parks submitted it to the National Labor Relations Board ("NLRB" or "the Board") on December 6, in support of a formal petition to decertify the Union. Petitioner does not claim Heartland engaged in any unfair labor practices in connection with the Decertification Petition.

On January 14, 2008, Ms. Parks started soliciting signatures for a second petition ("Disaffection Petition"); this effort garnered 13 signatures. Instead of submitting it to the NLRB, like the Decertification Petition, Ms. Parks gave the Disaffection Petition directly to Heartland on January 17. Together, the Decertification and Disaffection petitions contained 39 valid signatures, a slim majority of the Unit's 77 employees.

On January 17, within hours of receiving the Disaffection Petition, Heartland withdrew recognition from the Union, citing the petitions as objective evidence that a majority of Unit employees no longer supported the Union. A week later, on January 23, Heartland increased the Unit's hourly wages by 50 cents, and gave employees a retroactive raise of 32 cents per hour, applicable from the expiration date of the last CBA. In April 2008, Heartland gave Unit employees another 50 cent per hour raise.

On January 24, the Union filed a charge with the NLRB, accusing Heartland of violating section 8(a)(1) and (5) of the National Labor Relations Act ("the NLRA" or "the Act"). These provisions make it an unfair labor practice for an employer to—

(1) interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of the Act, 29 U.S.C. § 157];

. . . [and]

(5) refuse to bargain collectively with the representatives of his employees

. . .

29 U.S.C. § 158(a)(1), (5). The Union alleged, inter alia, that Heartland violated the NLRA by: (1) interrogating employees about their union sympathies; (2) soliciting them to sign a petition to decertify the Union; (3) threatening adverse action if they engaged in protected activity; and (4) unlawfully withdrawing recognition from the Union.

Petitioner Stephen M. Glasser investigated the complaint in his capacity as Regional Director of the Seventh Region of the NLRB. He found reasonable cause to believe the Act had been violated, and issued a Complaint and Notice of Hearing on April 30.

The hearing took place on June 24 and 25 before Administrative Law Judge Paul Bogas ("the ALJ"). From the transcripts provided, the Court summarizes relevant testimony from the hearing.

B. Administrative Law Hearing Testimony

Beverly Scott, an employee in Heartland's housekeeping department, testified that on January 16, 2008, her supervisor, Cindy Lord, summoned Ms. Scott to Ms. Lord's office using Heartland's public address system. Ms. Scott said that when she arrived, Ms. Lord paced outside her office, and said someone inside wanted to see her. Ms. Scott entered and found Ms. Parks, who made a few general comments about the Union and said: "You already know what's going on." Ms. Scott said yes, and added: "Before you start or say anything to me, I'm with the Union 100 percent," to which Ms. Parks responded: "Don't tell nobody about this conversation because if you do your job will be terminated." (Pet. Ex. 2, Transcript of Administrative Hearing (June 24, 2008) (hereinafter Hr'g Tr.), at 65.) Ms. Scott testified that, during this exchange, Ms. Lord continued pacing outside of the office. A few days later, Ms. Scott related this conversation to Teresa Stephens, Heartland's Human Resource Manager, who took notes and said no employee could threaten Ms. Scott's job. Ms. Stephens indicated she would "get back" to Ms. Scott, but never did. Ms. Scott did not sign the Disaffection Petition.

Another employee, William Brazil, testified that in early January, Ms. Lord told him someone in the front office wanted to see him. Mr. Brazil went to the office of the Director of Nursing, where he met a young woman whose name he did not know. Mr. Brazil testified he had seen the woman circulating petitions against the Union, and that she attended the administrative hearing on the same day he did. From this description, the ALJ inferred the person was Ms. Parks. The woman spoke to Mr. Brazil about the Union, and sent him to Glen Lowery, Heartland's Administrator at the time. Mr. Brazil testified that, when he went into Mr. Lowery's office,

Glen had talked to me about how do I feel about the Union; was I for the Union or was I against the Union. He told me that he needed about two more signatures in order to get the Union out. He asked me would I sign to help get the Union out. I told him I didn't, I wasn't for the Union; I wasn't against the Union. I didn't want to give him my opinion as to how I felt about the Union. . . .

He asked me would I help him to get the Union out because the Union had been around, he was tired of the Union. He said if I help get the Union out he would have more control within the company.

(Id. at 74-75.) Mr. Brazil added that Ms. Lord called him back to Mr. Lowery's office "about two or three times." On each occasion Mr. Lowery asked him if he had made a decision about "voting the Union out or keeping it in." (Id. at 75-76.) Each time, Mr. Brazil answered he had not made any decision. After the last encounter, Mr. Lowery told Mr. Brazil to go back to the Director of Nursing's office, where he met the same woman as before. Mr. Brazil testified that she told him: "either way it go [sic], with or without your vote, we don't need it; we have enough signatures to vote the Union out." (Id. at 76.) Mr. Brazil did not sign the Disaffection Petition.

C. December 22, 2008 Findings of the Administrative Law Judge

The ALJ credited the statements of Ms. Scott and Mr. Brazil over the testimony of Ms. Parks and Mr. Lowery. And, he found that Ms. Parks acted as Heartland's agent when she threatened Ms. Scott.

The ALJ held that Heartland violated § 8(a)(1) of the Act by: (1) actively soliciting and helping to solicit employees to sign a decertification petition (actually, the Disaffection Petition); (2) coercively interrogating Mr. Brazil about his union sympathies and willingness to sign the Disaffection Petition; and (3) threatening Ms. Scott with adverse action if she engaged in protected concerted activities. Lastly, the ALJ ruled that Heartland violated § 8(a) (1) and (5) by withdrawing recognition from the Union based on a Disaffection Petition tainted by its...