Henderson v. Bluefield Hosp. Co.

• Decision Date: 28 August 2018
• Docket Number: No. 16-2332,No. 16-2331,16-2331
• Citation: 902 F.3d 432
• Parties: Lisa Y. HENDERSON, Acting Regional Director of the Tenth Region of the National Labor Relations Board, FOR and on behalf of the NATIONAL LABOR RELATIONS BOARD; National Labor Relations Board, Plaintiffs - Appellants, v. BLUEFIELD HOSPITAL CO., LLC, d/b/a Bluefield Regional Medical Center, Defendant - Appellee. Lisa Y. Henderson, Acting Regional Director of the Tenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board; National Labor Relations Board, Plaintiffs - Appellants, v. Greenbrier VMC, LLC, doing business as Greenbrier Valley Medical Center, Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

902 F.3d 432

Lisa Y. HENDERSON, Acting Regional Director of the Tenth Region of the National Labor Relations Board, FOR and on behalf of the NATIONAL LABOR RELATIONS BOARD; National Labor Relations Board, Plaintiffs - Appellants,

v.BLUEFIELD HOSPITAL CO., LLC, d/b/a Bluefield Regional Medical Center, Defendant - Appellee.

Lisa Y. Henderson, Acting Regional Director of the Tenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board; National Labor Relations Board, Plaintiffs - Appellants,

v.Greenbrier VMC, LLC, doing business as Greenbrier Valley Medical Center, Defendant - Appellee.

No. 16-2331

No. 16-2332

United States Court of Appeals, Fourth Circuit.

Argued: October 25, 2017

Decided: August 28, 2018

ARGUED: Jeffrey William Burritt, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Appellants. Kaitlin Ann Kaseta, CARMODY & CARMODY, LLP, Mount Pleasant, South Carolina, for Appellees. ON BRIEF: Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, Barry J. Kearney, Associate General Counsel, Jayme L. Sophir, Deputy Associate General Counsel, Elinor L. Merberg, Assistant General Counsel, Laura T. Vazquez, Deputy Assistant General Counsel, Meghan Brooke Phillips, Office of the General Counsel, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Appellants. Bryan T. Carmody, CARMODY & CARMODY, LLP, Mount Pleasant, South Carolina, for Appellees.

Before GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the majority opinion, in which Judge Agee joined. Chief Judge Gregory wrote a dissenting opinion.

NIEMEYER, Circuit Judge:

The issue in this appeal is whether the district court abused its discretion in declining to grant preliminary injunctive relief under § 10(j) of the National Labor Relations Act as requested to preserve the ability of the National Labor Relations Board ("the Board") to award relief after the completion of the ongoing agency process adjudicating unfair labor practice charges against two hospitals. We conclude that the Board failed to demonstrate sufficiently that the effectiveness of its remedial power was in jeopardy in this case and therefore that the district court did not abuse its discretion in denying the Board’s petitions for injunctive relief.

I

Bluefield Regional Medical Center is an acute-care hospital located in Bluefield, West Virginia, that employs 170 registered nurses. Greenbrier Valley Medical Center likewise is an acute-care hospital located in Ronceverte, West Virginia, that employs 120 registered nurses. These hospitals are affiliated with Community Health Systems, Inc., which has a national network of affiliated hospitals.

In August 2012, the registered nurses at both hospitals voted to be represented for purposes of collective bargaining by the National Nurses Organization Committee ("the Union"), and thereafter the Board certified the Union as the exclusive bargaining representative for each hospital’s "full-time, regular part-time, and per diem Registered Nurses." Both hospitals challenged the certifications and refused to bargain with the Union, prompting the Union to file unfair labor practice charges with the Board under § 8 of the National Labor Relations Act ("the NLRA"). In December 2014, the Board issued a consolidated order directing the hospitals to recognize and bargain with the Union.

Bluefield began bargaining sessions with the Union in March 2015, and sessions continued into November 2015. At a November session, Bluefield presented the Union with a "package proposal" that lacked a grievance-arbitration provision and contained a broad management-rights clause that, among other things, reserved the hospital’s right to unilaterally discharge, suspend, or discipline any registered nurse. Michelle Mahon, the Union’s bargaining representative, rejected the package as "completely unacceptable" and "demonstrative of bad faith bargaining." But, according to Mahon, she nonetheless "made it clear" that the Union still wanted "to bargain in good faith," and she proposed several alternative provisions. The hospital’s bargaining representative, however, stated that Bluefield was "standing with its proposal" and would not respond to the Union’s proposals because the Union had not responded to its package proposal as a whole. Negotiations thereafter broke down.

Similarly, Greenbrier Valley began bargaining sessions with the Union in February 2015, and sessions continued into October 2015, when Greenbrier Valley presented a package proposal to the Union that was essentially the same as the one presented by Bluefield. And similarly, that proposal led to a breakdown in negotiations.

In addition, after Greenbrier Valley terminated a registered nurse’s employment during the summer of 2015 on the ground that she had violated the hospital’s attendance policy, the Union requested to bargain over the nurse’s discharge and also requested that the hospital provide the Union with the nurse’s attendance records and the attendance records for other nurses in her department. Greenbrier Valley stated that it was willing to bargain with the Union over the nurse’s discharge and to provide the requested information but only if the Union first provided the hospital with "a suitable indemnification." Greenbrier Valley explained that, earlier in the year, an Ohio jury had returned an $800,000 verdict against Affinity Medical Center, another Community Health Systems hospital, on an employee’s defamation claim, which, according to Greenbrier Valley, arose "in material part ... out of Affinity’s inclusion of a [Union] representative ... in an investigatory interview." Nonetheless, the Union, emphasizing that "defamation is an intentional tort," rejected the request for an indemnification agreement, calling it "absurd" and the "latest assault on the fundamental ... rights of Registered Nurses."

In January 2016, the Union filed unfair labor practice charges with the Board against both Bluefield and Greenbrier Valley under § 8(a)(1) and (5) of the NLRA, alleging that both hospitals had "unlawfully engag[ed] in surface bargaining" and had therefore "failed and refused to bargain collectively and in good faith with the [Union]." In addition, the Union charged Greenbrier Valley with bad-faith bargaining with respect to the nurse’s discharge. Based on these charges, the Board issued an administrative complaint against the hospitals on March 10, 2016, commencing a process of agency adjudication that remains ongoing.

Then, roughly six months after the Union filed its charges with the Board, the Board filed petitions in the district court — one against each hospital — under § 10(j) of the NLRA, 29 U.S.C. § 160(j), requesting preliminary injunctions "pending the final disposition of [the] matters involved herein pending before the Board" that would direct the hospitals to bargain with the Union in good faith; require the hospitals to post copies of the court’s preliminary injunction; and require the hospitals to read the preliminary injunction orally to the employees. The Board alleged that unless the injunctions issued, the registered nurses would be deprived "of their fundamental right to be represented for the purposes of collective bargaining." In addition, the Board sought a preliminary injunction that would direct Greenbrier to bargain in good faith over the former nurse’s discharge and to furnish the Union with the requested information.

In support of the petitions, the Board filed affidavits from Union employee Michelle Mahon and various nurses, including Bluefield Nurse Brenda Meadwell and Greenbrier Valley Nurse Michelle O’Bryan. According to Mahon and Nurse Meadwell, the hospitals’ negotiator frequently yelled or screamed at the Union’s bargaining-team members and once threw papers toward Mahon. They also stated that some scheduled bargaining sessions were cancelled because the hospitals refused to grant bargaining-team members time off to attend the sessions.

With respect to the effect of the stalled negotiations on the employees’ perception of the Union, Nurse O’Bryan stated that "[o]ver the last six months, things have died down with the [U]nion." She added:

We’ve been trying to negotiate forever. A lot of people are thinking, if it is going to work, it is. If it’s not, it’s not. In general conversation, people might say things like, "well, the [U]nion ain’t done nothing." When this has come up, I’ll explain that this is going to court and that it takes awhile .... Because a lot of the nurses aren’t seeing anything, they aren’t really talking about the [U]nion.

She stated that she had told employees that "the Union has filed charges against the hospital about things, and now we’re just waiting. You know how long courts take." She noted that there had been a lot of information passed out by the Union in earlier times, but that she had not "seen any flyers in the break room about the [U]nion in a while" and that "the [U]nion reps [used to be] more visible at the hospital." She did acknowledge that she was not aware of any anti-union effort, that the Union had continued having some meetings, and that nurses continued to wear Union buttons. Finally, Nurse O’Bryan stated that a number of nurses had "left over the last few years" and were replaced by licensed practical nurses, who were not part of the bargaining unit. She herself stated that she was about to change from full-time to part-time status because "nothing stays the same, there’s changes made whenever the managers want to and it is hard to work that way." She also added that she had found a better paying job that was closer to her home.

On the same subject, Nurse Meadwell noted that the Union had called a "National Day of Action" on June 1, 2016, to raise awareness regarding its activities at several Community Health Systems hospitals and that, in connection with this event, she had talked to reporters from the local...