Good Samaritan Med. Ctr. v. Nat'l Labor Relations Bd.

• Decision Date: 31 May 2017
• Docket Number: 15-1941,Nos. 15-1347,15-1412,Nos. 15-1877,s. 15-1347,s. 15-1877
• Citation: 858 F.3d 617
• Parties: GOOD SAMARITAN MEDICAL CENTER, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. National Labor Relations Board, Petitioner, Cross-Respondent, v. 1199 SEIU United Healthcare Workers East, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — First Circuit

858 F.3d 617

GOOD SAMARITAN MEDICAL CENTER, Petitioner, Cross-Respondent,

v.NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

National Labor Relations Board, Petitioner, Cross-Respondent,

v.1199 SEIU United Healthcare Workers East, Respondent, Cross-Petitioner.

Nos. 15-1347

15-1412

Nos. 15-1877

15-1941

United States Court of Appeals, First Circuit.

May 31, 2017

Joseph W. Ambash, Boston, MA, with whom Reyburn W. Lominack, III and Fisher & Phillips LLP, Columbia, SC, were on brief, for Good Samaritan Medical Center.

Betsy Ehrenberg, with whom Pyle Rome Ehrenberg PC, Boston, MA, was on brief, for 1199 SEIU United Healthcare Workers East.

Gregoire F. Sauter, Attorney, National Labor Relations Board, with whom Usha Dheenan, Supervisory Attorney, Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, were on brief, for The National Labor Relations Board.

Before Torruella and Barron, Circuit Judges, and Lisi,^* District Judge.

TORRUELLA, Circuit Judge.

Camille A. Legley, Jr. was a probationary employee hired by Good Samaritan Medical Center ("Good Samaritan"). During an orientation training he questioned a union delegate's alleged remark that he had to join 1199 SEIU United Healthcare Workers East ("the Union"), in order to work at Good Samaritan. The exchange became heated and the following day Good Samaritan terminated his employment claiming that his conduct had violated its civility policy. Upon Legley's complaint, an administrative law judge ("ALJ"), followed by the National Labor Relations Board ("NLRB" or "the Board"), found that the Union caused Good Samaritan to discharge Legley because of his protected conduct, in violation of Section 8 of the National Labor Relations Act ("NLRA" or "the Act"). Good Samaritan Med. Health Ctr. , 361 N.L.R.B. No. 145 (Dec. 16, 2014). The NLRB ordered the Union and Good Samaritan to, inter alia , reinstate Legley with back pay and rescind the workplace civility policy. Because we find considerable contradictory evidence in the record that the NLRB failed to consider, we do not find substantial evidence on the record as a whole that Legley was discharged because of his protected conduct and decline enforcement of the NLRB's order.

I. Background

A. Hiring Process

During the fall of 2011 Legley applied and interviewed for a position at Good Samaritan as a part-time boiler operator. Good Samaritan has a collective-bargaining agreement with the Union pursuant to which employees are required to either be members of the Union or to pay it an agency-service fee.¹ Also of relevance, Good Samaritan maintains a workplace civility policy.²

Between September and November of 2011 Legley attended multiple interviews with Facilities Manager Sean Brennan as well as two employees who report to Brennan: Kevin Jordan and Neal Nicholaides. Jordan and Nicholaides are both union delegates. On November 28, 2011, Good Samaritan offered Legley a job on the weekend evening shift at its Brockton, Massachusetts location. On December 5, 2011, Legley reported to Good Samaritan's human resources department in order to complete required paperwork and to submit to a required physical. In their testimony to the ALJ, three women who met with Legley that day, Human Resources Manager Jennifer Patnaude, administrative assistant Jennifer Dorsey and medical assistant Annette Miller, all testified that they found Legley to be difficult. Legley testified that on this date he met with "two or three ladies,"³ and he did not perceive there to be any conflicts; he believed he was cooperative and did not give them a hard time in any way. Patnaude, on the other hand, was so concerned about Legley's behavior that she called Brennan to ask if he really wanted to hire Legley. Brennan replied in the affirmative stating that Legley had interviewed well and was being hired to fill a difficult-to-staff shift.

B. Orientation Meeting

Legley's first day of work was December 19, 2011 when he reported for a mandatory training. Legley and three other new hires (all women) reported to the building's lobby and then, due to an elevator malfunction, were required to walk up five flights of stairs to the training room. Legley lagged behind the other attendees and, as a result, the first session had already begun when he entered the training room. Legley took a seat at the head of the table, closest to the presenter.

The first twenty minutes of the orientation were dedicated to the Union. On this day the Union's portion of the orientation was presented by Darlene Lavigne who had been employed at Good Samaritan for almost 30 years. She had also been a union delegate for the previous ten years and gave these presentations approximately twice a month. Lavigne's presentation typically included information on the Union and its benefits and included handouts explaining the Union as well as paperwork soliciting contact information from the new employees.⁴

The events of this meeting are under dispute. Three individuals testified about it before the ALJ: Lavigne, Legley and Kimberly Derby, one of the other new hires. Legley testified that when he arrived in the room he expected to find an HR representative, so he was confused by the fact that the discussion seemed to be focused on the Union. He further testified that the woman speaking (later identified as Lavigne) "was talking about you had to join the union to work here and all of that." Legley stated that he "was so mixed up with what was going on," because he expected a human resources representative and instead received a "union steward."

Not long into the presentation, Legley reportedly said to Lavigne "I understand there's a state or federal law that you don't have to join a union," to which Lavigne reportedly stated "You still have to join the union." According to Legley, at this point Lavigne "got kind of upset."

Lavigne continued with her presentation and Legley proceeded to read the materials given to him. Within these materials he found a paragraph essentially stating that "you do not have to be a member of 1199, the union, and that you can contribute your monies to some agency in the hospital." Legley proceeded to read the relevant language out loud to Lavigne, who, according to Legley, "got very upset and mad." Legley testified that after this "she was in a different mood, she was—you could tell she was very upset and everything." Legley believes that Lavigne said on four to six occasions that they had to join the Union in order to work at the hospital.

Legley admitted that he "was a little upset because I didn't know what was going on. I thought it was going to be an HR meeting and it turned out to be a union meeting, and I just never ran into a situation like this before," but he denied raising his voice and being angry, disruptive or rude.⁵ In contrast, he characterized Lavigne as "[r]ude, aggressive, she looked mad, she was definitely upset that I asked a couple of those questions." Legley testified that Lavigne looked at him with "evil eyes."

Derby testified that she also understood Lavigne to be saying that "in order to work for Good Samaritan Hospital ... you needed to join the union." Derby described the meeting as "an open forum meeting, so I don't necessarily think he interrupted her" and said that while he had a loud voice "he had a normal tone." Derby testified that Lavigne's response was that yes, he did have to join the Union. She testified that Lavigne became irritated after Legley told her that he thought there was a law saying that he did not have to join the Union. Derby felt that Legley's questions were not "being validly answered."

At the same time, Derby also stated that the "conversation was escalating" and described both Lavigne and Legley as "irritated" in demeanor. Derby referred to Legley's demeanor as "irritated and passionate," said that his "voice became louder," indeed, that "[b]oth parties had raised voices." Derby agreed that he was "pretty passionate about being sure there was a law," "was very forceful and energetic in his presentation," that "he was a big guy with a big voice, so the impression he made on you was of a big presence in the room," and that there seemed to be an "escalation."

Derby testified that Legley asked if he could make copies of all of the paperwork and that Lavigne "was really irritated with him for asking to make copies." Derby said that it was around this time that Lavigne asked Legley his name and what department he would be working in and "stated that she knew the people that worked down there, and she was going to warn them that he was coming, and that they would not put up with him." Derby testified to being horrified by this exchange because she took it to be "a threat."

In contrast to Legley's testimony, Lavigne testified that the first thing Legley did when he walked in the room was point a finger at her and say "[y]ou were supposed to meet me in the lobby." She described him as interrupting a total of three or four times to complain about not being met downstairs and having to climb all the flights of stairs. She described his presence as being overbearing. She felt that he "was consuming the meeting." She testified that "[h]e wasn't yelling, but he was talking loudly. He was exerting his power, like he was just—it was all about him, all about him and his questions, his concerns." Lavigne testified that if someone does not want to join the Union she typically tells them there is information in "the yellow section on the back of [the] form" but that "he didn't let me." She testified that she "was upset because of the interruptions, the rudeness, the overpowering of my presentation." She described him as "[o]verbearing. I thought he was scaring the other ladies, myself. I mean they're like they were shocked. They were like waiting to see like what's going to happen next." She said that at the end of the session ...