HealthBridge Mgmt., LLC v. Nat'l Labor Relations Bd.

• Decision Date: 18 August 2015
• Docket Number: 14–1116.,Nos. 14–1101,s. 14–1101
• Parties: HEALTHBRIDGE MANAGEMENT, LLC, et al., Petitioners v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

798 F.3d 1059

HEALTHBRIDGE MANAGEMENT, LLC, et al., Petitioners

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 14–1101

14–1116.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 5, 2015.

Decided Aug. 18, 2015.

Erin E. Murphy argued the cause for petitioners. With her on the briefs were Paul D. Clement and William R. Levi.

Jared D. Cantor, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Associate, Linda Dreeben, Deputy Associate General Counsel, and Julie B. Broido, Supervisory Attorney.

Before: HENDERSON, PILLARD and WILKINS, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge WILKINS.

Opinion concurring in part and dissenting in part filed by Circuit Judge HENDERSON.

WILKINS, Circuit Judge:

This case arises out of a labor dispute at six nursing homes in Connecticut operated by Petitioner HealthBridge Management. After a regional office of the National Labor Relations Board issued a complaint against HealthBridge alleging that it unfairly terminated housekeeping employees, the union that represents employees at the nursing homes distributed stickers and flyers asserting that HealthBridge had been “busted” for “violating federal labor law.” Employees posted the notices on union bulletin boards, and some wore the stickers in various areas of the nursing homes where they worked. HealthBridge took down the flyers and ordered its workers to remove the stickers while working in patient care areas. The Board concluded that the company's conduct violated section 8(1)(a) of the National Labor Relations Act. HealthBridge petitioned for review of the Board's order, and the Board petitioned for enforcement. For the reasons discussed below, we deny the petition for review and grant the cross-application for enforcement.

I.

Petitioners in this case are HealthBridge Management, LLC (“HealthBridge”) and six long-term nursing care centers the firm operates in Connecticut (the “Centers”). The Centers provide convalescent and long-term nursing care and cater to primarily elderly residents. The New England Health Care Employees Union, District 1199, SEIU, AFL–CIO (the “Union”) serves as the exclusive bargaining unit for non-managerial healthcare employees at the six Centers.

HealthBridge and the Centers have historically permitted employees to wear Union insignia at all times in both patient care and non-patient care areas. See Healthbridge Mgmt., LLC, 360 N.L.R.B. No. 118, 2014 WL 2194550, at *7 (May 22, 2014). Collective bargaining agreements (the “Agreements”) between the Union and the Centers provide that the Centers must make bulletin boards available for the display of “proper Union notices” in “a location conspicuous and accessible to workers.” E.g., J.A. 1117 (Art. 6(D)).

In March 2011, when the events that gave rise to this case occurred, HealthBridge and the Union were engaged in a contentious renegotiation of the Agreements, which were set to expire March 16, 2011. Shortly before that date, HealthBridge sent a series of letters to residents of the Centers and their families informing them of its side of the dispute. HealthBridge told residents that the healthcare industry was rapidly changing, and that in order to compete with lower-cost providers, it must make changes to the Agreements, since its prior bargain with the Union was “simply no longer sustainable.” J.A. 1073–77. The letters described the Union as an intractable negotiating partner with a “ ‘take-it-or-leave-it’ approach,” and warned that the Union had threatened to call a strike if it did not get what it wanted. J.A. 1078–81. HealthBridge told its residents and their families that the Union “ha[d] a long history” of calling strikes, but that it had a contingency plan to continue services uninterrupted by hiring replacement employees if the current nursing staff went on strike. J.A. 1073–77.

On March 21, 2011, the Board's Region 34 filed a complaint against HealthBridge alleging that three of the Centers discharged or threatened certain housekeeping employees in violation of the National Labor Relations Act (the “Act” or “NLRA”). Four days later, the Union distributed stickers to employees at each of the Centers declaring—in a message superimposed over a black-and-white image of a gavel—that the Centers had been “BUSTED March 21, 2011 By National Labor Board For Violating Federal Labor Law.” J.A. 1029, 1050. The Union also posted flyers on Union bulletin boards at the Centers stating that HealthBridge had been “BUSTED” and that the company “will do ANYTHING—even violate labor law—in [its] ruthless pursuit of more profit.” J.A. 1062–67. The flyers advised readers that “[o]n March 21st, the National Labor Relations Board issued an 18–page federal complaint against [HealthBridge] for massive violations of federal law” and asserted that HealthBridge was trying to provoke a strike by “refusing to sign a contract extension like most other nursing home operators” and was “exploiting the elderly and their caregivers by lying, cheating and even law-breaking.” Id.

Lisa Crutchfield, HealthBridge's Senior Vice President of Labor Relations, held a conference call that day with managers at the Centers instructing them to prohibit employees from wearing the stickers when working in resident-care areas or providing care to residents. She told managers to ask employees who refused to observe the policy to punch their time-cards out and leave the premises. At two Centers, management banned employees from wearing the stickers in any area of the facility, including non-patient care areas. Healthbridge, 2014 WL 2194550, at *7. Crutchfield also instructed managers at the Centers to remove the flyers from the bulletin boards. A week later, HealthBridge sent additional letters to residents and their families, informing them about the flyers, which it said were “full of misleading and false statements ... designed to try and harm the reputation of our Center in the community.” J.A. 1083–85.

The letters set forth HealthBridge's position on the “completely baseless” allegations in the Board's March 21 complaint, explained that there had not yet been any hearing or ruling in the case, and declared that HealthBridge planned to mount a robust defense. Id.

The Union filed charges with the Board concerning the sticker ban and flyer removals. The Board subsequently filed complaints alleging that HealthBridge's actions “interfer[ed] with, restrain[ed], and coerc[ed HealthBridge's] employees in the exercise of” their right to collective bargaining under section 7 of the Act, 29 U.S.C. § 157, in violation of section 8(a)(1) of the Act, id. § 158(a)(1). J.A. 32.

At a hearing before an ALJ, Crutchfield testified that she ordered the stickers banned from patient care areas out of concern for residents, who might think HealthBridge had committed a crime that could impact resident care.¹ J.A. 799–800. HealthBridge also produced an expert on geriatric nursing care, Dr. Ilene Warner–Maron, who testified that the “busted” sticker could have posed a risk to the emotional wellbeing of vulnerable nursing home residents dependent on staff to render care. She testified that the word “busted” has a negative connotation that suggests arrest or bankruptcy, and that seeing the word, printed in red lettering on a sticker worn by their caregivers, could cause residents to become “agitated, upset, worried, [or] concerned.” J.A. 721. Warner–Maron also told the ALJ that the sticker's statement that the Centers had violated the law could lead residents to fear that their nursing home would be closed, and they would be transferred to a new facility, an assertion she believed could be a form of emotional abuse. She admitted, however, that she did not speak with any residents, family members, or caregivers at any of the Centers in forming her opinion.

Crutchfield testified that she ordered the flyers removed because she did not consider them “proper” within the meaning of the Agreement provision permitting the Union's use of bulletin boards. She found them improper because they were “disparaging,” “derogatory,” and “defamatory” toward HealthBridge and falsely suggested that HealthBridge did not care about its residents or employees.² J.A. 774, 778. Crutchfield had previously asked her subordinates to remove other notices, including flyers stating that HealthBridge had robbed employees of vacation time, had “kick[ed employees] out the door,” J.A. 810–11, would “[t]ake away every single thing we've fought for,” and would “turn our nursing home into a sweatshop,” J.A. 1055–60. Other notices Crutchfield removed included postings updating Union members on changes HealthBridge sought to the terms of the Agreements. She did not communicate with or seek to inform anyone in the Union before removing the flyers. Crutchfield acknowledged that the Agreements did not expressly authorize HealthBridge to remove Union notices from the bulletin boards.

The ALJ determined that HealthBridge violated section 8(a)(1) of the Act by removing the flyers and banning the stickers from patient care areas at the six Centers (as well as non-patient areas at two of the Centers). A three-member panel of the Board voted unanimously to uphold the charges against HealthBridge related to the flyer removal, but split two-to-one in favor of the Union on whether the sticker ban contravened the Act. The Board determined that the prohibition on the stickers was presumptively invalid and could only be overcome by a showing of special circumstances, endorsing the ALJ's view of the case.³ The Board said it did not require “actual harm or a disturbance to patients” for a showing of special circumstances, but that Crutchfield and Warner–Maron's “general and speculative testimony” was insufficient, since neither testified “based on any specific experience with a patient, family member, or employee,” and...