Health Care & Retirement v. Nat'l Labor Relations BD
| Citation | 255 F.3d 276 |
| Decision Date | 20 June 2000 |
| Docket Number | No. 99-5604,99-5766,99-5604 |
| Parties | (6th Cir. 2000) Health Care and Retirement Corporation of America, d/b/a Glenside Nursing Center, Petitioner/Cross-Respondent, v. National Labor Relations Board, Respondent/Cross-Petitioner. Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Margaret J. Lockhart, Michael L. Stokes, COOPER & WALINSKI, Toledo, Ohio, for Petitioner.
Christopher W. Young, John D. Burgoyne, Aileen A. Armstrong, Frederick C. Havard, Preston Pugn, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., for Respondent.
Before: KEITH, DAUGHTREY, and GILMAN, Circuit Judges.
Health Care and Retirement Corporation of America d/b/a Glenside Nursing Center ("Glenside") petitions this Court for review of a National Labor Relations Board ("NLRB" or the "Board") order. The Board found that Glenside (1) refused to bargain with District 1199J of the National Union of Hospital & Health Care Employees, AFSCME, AFL-CIO (the "Union") as the certified bargaining representative of its employees, and (2) refused to provide the Union with certain requested information in violation of Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5). 1 The Board has cross-applied for enforcement of its order. After carefully reviewing the record, the briefs of both parties, and the applicable law, and having had the benefit of oral argument, we deny Glenside's petition and enforce the Board's order in full.
Glenside operates a nursing home in New Providence, New Jersey. On March 16, 1998, the Union filed a representation petition seeking a Board-conducted election in a unit consisting of all full-time and regular part-time certified nursing assistants ("CNAs"), activity aides, central supply clerks, cooks, dietary aides, housekeeping employees, laundry aides, maintenance assistants, and receptionists employed at Glenside's New Providence, New Jersey facility.
Maya Comia, the Union's paid organizer, was in charge of the organizing drive. Employees Roger Wilcott, Joanna Barnwell, Pearly Ceine, Carol Fleurio, Marilyn Cadet, and Marlene Barnwell all supported the Union; were members of the In-Plant Organizing Committee ("IPOC"); and distributed authorization cards for the Union. However, Glenside produced no evidence that any of these individuals received compensation from the Union in exchange for services or support. Similarly, Glenside produced no evidence that the IPOC members organized any events or meetings for the Union.
Pursuant to a stipulated election agreement, an election was scheduled for April 30, 1998. Twenty-four votes opposed the Union, thirty-four supported the Union, and five ballots were challenged.
On May 7, 1998, Glenside filed eight objections alleging the Union's misconduct affected the election. More specifically, Glenside alleged that the IPOC members were Union agents and that they had threatened other employees to support the Union. In addition, Glenside claimed that IPOC members improperly posted pro-union posters, removed Glenside campaign posters, defaced the NLRB's official notice of election, and injected racial prejudice and religion into the campaign.
After an investigation, the Regional Director directed that a hearing be held. After the hearing, the presiding hearing officer overruled Glenside's objections. Glenside then filed exceptions to the hearing officer's report and recommendations. On December 28, 1998, the Board adopted the hearing officer's findings and recommendations and certified the Union as the exclusive collective-bargaining representative of Glenside's employees in the stipulated unit.
Glenside refused to bargain with the Union and to give it certain requested information. 3 Consequently, the NLRB's General Counsel issued a complaint alleging that Glenside's refusal to bargain and to provide the Union with the requested information violated Sections 8(a)(1) and (5) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a)(1) & (5).
On March 26, the General Counsel filed a motion for summary judgement with the NLRB. On April 29, 1999, the NLRB issued a decision and order granting the General Counsel's motion for summary judgment. The Board found that all the issues Glenside raised were or could have been litigated in the prior representation proceeding and that Glenside did not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor did it allege any special circumstances that would require the Board to reexamine the decision to certify the Union as the employees' bargaining representative. The order requires Glenside to cease and desist from the unfair labor practices found and from, in any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act, as amended by 29 U.S.C. § 157. In addition, the order requires Glenside to supply the Union with the requested information, to bargain with the Union upon request, to embody any understanding reached in a signed agreement, and to post a remedial notice.
Glenside has appealed this order to this Court. Upon consideration of the record as a whole, we agree that substantial evidence supported the Board's findings of Section 8(a)(1) and (5) violations for the reasons stated below.
The scope of our review of Board findings is well-established: Where there is substantial evidence in the record as a whole to support the Board's conclusions, they may not be disturbed upon appeal. See 29 U.S.C. § 160(e), (f); Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir. 1989). Moreover, "it is the Board's function to resolve questions of fact and credibility when there is a conflict in the testimony." NLRB v. Baja's Place, 733 F.2d 416, 421 (6th Cir. 1984) (per curiam);Kux Mfg Co., 890 F.2d at 808.
"[B]allots cast under the safeguards provided by Board procedure [presumptively] reflect the true desires of the participating employees." Kux Mfg Co., 890 F.2d at 808 (citing NLRB v. Zelrich Co., 344 F.2d 1011, 1015 (5th Cir. 1965)). Thus, the burden of proof on parties seeking to have a Board-supervised election set aside is a "heavy one." See Harlan No. 4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th Cir. 1974). This burden is not met by proof of misconduct, but "[r]ather, specific evidence is required, showing not only that unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election." NLRB v. Bostik Div., USM Corp., 517 F.2d 971, 975 (6th Cir. 1975) (quoting NLRB v. White Knight Mfg. Co., 474 F.2d 1064, 1067 (5th Cir. 1973)). "It does not matter that the reviewing court might have reached different conclusions if the Board has resolved the case reasonably." NLRB v. Handy Hardware Wholesale, Inc., 542 F.2d 935, 937 (5th Cir. 1976) (citation omitted).
We must first address Glenside's allegation that IPOC members Roger Wilcott, Joanna Barnwell, Pearly Ceine, Carol Fleurio, Marilyn Cadet, and Marlene Barnwell (collectively the "IPOC members") are Union agents. The hearing officer rejected Glenside's allegation and the Board affirmed. We agree with both the hearing officer and the Board that the Union did not clothe the IPOC members with either actual or apparent authority, and thus their alleged threats were properly not imputed to the Union through traditional agency principles.
"Generally, a union is not responsible for the acts of an employee, unless the employee is an agent of the union." Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351, 355 (6th Cir. 1983). To determine whether an employee is an agent of a union, the question must be analyzed within the framework of common law agency principles. See Id. The conduct of pro-union employees will only be attributed to a union where the union has "instigated, authorized, solicited, ratified, condoned or adopted" the conduct. Id. "The test of agency in the union election context is stringent, involving a demonstration that the union placed the employee in a position where he appears to act as its representative; it is not enough that the employee unilaterally claims representative status . . . " Tuf-Flex Glass v. NLRB, 715 F.2d 291, 296 (7th Cir. 1983) (citations omitted).
"An employee's conduct may also be attributed to the union if the objector can demonstrate that the union has clothed the employee with apparent authority to act on behalf of the union." Kitchen Fresh, Inc., 716 F.2d at 355. At a minimum, the party seeking to hold the union responsible for an employee's conduct based upon the theory of apparent authority must show that the union cloaked the employee with sufficient authority to create a perception among the rank-and-file that the employee acts on behalf of the union, and that the union did not disavow or repudiate the employee's statement or actions.Id.
Because the question of whether someone is acting as an agent of a union is a factual one, the Board's findings with respect to questions of agency, if supported by substantial evidence on the record as a whole, are "conclusive." See Pacific Plywood Co. v. NLRB, 315 F.2d 671, 672 (9th Cir. 1963) (citing 29 U.S.C. § 160(e)).
In this case, Glenside presented no evidence that the Union "instigated, authorized, solicited, ratified, condoned, or adopted" any conduct with which Glenside objected. Furthermore, aside from bare assertions, Glenside has not produced evidence that the Union cloaked the IPOC members with sufficient authority to create a perception that the IPOC members acted on the Union's behalf.
Kitchen Fresh, Inc. v. NLRB is directly analogous to the instant facts. There, the employer alleged that an IPOC...
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