Hospital Cristo Redentor, Inc. v. N.L.R.B.

• Decision Date: 30 May 2007
• Docket Number: No. 06-2277.,06-2277.
• Citation: 488 F.3d 513
• Parties: HOSPITAL CRISTO REDENTOR, INC. d/b/a Hospital Cristo Redentor, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

488 F.3d 513

HOSPITAL CRISTO REDENTOR, INC. d/b/a Hospital Cristo Redentor, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 06-2277.

United States Court of Appeals, First Circuit.

Heard April 4, 2007.

Decided May 30, 2007.

José A. Oliveras-González, for petitioner.

Stacy Garrick Zimmerman, Attorney, National Labor Relations Board, with whom David Habenstreit, Supervisory Attorney, Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, were on brief, for respondent.

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

Hospital Cristo Redentor of Puerto Rico petitions for review of a decision and order of the National Labor Relations Board; the Board has filed a cross-application to enforce the order.

While the outcome of the case is largely driven by the facts and by the substantial evidence rule, there is one basic point of law worth stressing. This court has previously rejected, and we do so again, arguments by petitioners that because they supposedly have complied with Puerto Rico Law 80, P.R. Laws Ann. tit. 29, §§ 185a-185m, they have a defense against enforcement of a Board unfair labor practice decision and order. Such arguments fundamentally misunderstand both the operation of federal labor relations law and the role of courts reviewing Board orders.

The Board's July 31, 2006 decision and order affirmed an Administrative Law Judge's decision that the Hospital had violated the National Labor Relations Act, 29 U.S.C. §§ 151-169, as to its employee and union delegate Carlos Garcia Santiago ("Garcia"). The Hospital did so by: (1) interrogating Garcia about his union activities and threatening him in relation to those activities, in violation of section 8(a)(1) of the Act; and (2) both suspending and discharging Garcia for his union activities in violation of section 8(a)(3) and section 8(a)(1) of the Act. Hosp. Cristo Redentor, Inc., 347 N.L.R.B. No. 65, at 1 (July 31, 2006). The Board's remedy consisted of a cease-and-desist order, posting of the remedial order, and full reinstatement of Garcia, with make-whole compensation and removal of all references to the unlawful suspension and discharge from the Hospital's files. Id. at 6, 25.

We have jurisdiction to review the Board's final order. 29 U.S.C. § 160(e)-(f).

I.

With one exception related to the interplay between Law 80 and the NLRA, discussed later, the Hospital does not contend that the Board utilized incorrect legal standards. We outline the basic federal labor laws at issue, and then discuss the evidence within that context.

Section 7 of the NLRA guarantees employees the right to organize. Id. § 157. It provides: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." Id. Section 8(a)(1) of the Act implements the guarantees in section 7 of the Act. Id. § 158(a)(1). Section 8(a)(1) provides: "It shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of" their section 7 rights. Id.

Employers violate section 8(a)(1) of the Act by, inter alia, "coercively interrogating employees about their union activities or sentiments, or about the activities or sentiments of others, and by either directly or indirectly threatening employees." NLRB v. Horizons Hotel Corp., 49 F.3d 795, 804 (1st Cir.1995) (quoting 3-E Co. v. NLRB, 26 F.3d 1, 3 (1st Cir.1994)) (internal quotation marks omitted). The Board determines whether there is coercive interrogation by looking to whether, under all of the circumstances, the interrogation reasonably tends to interfere with, restrain, or coerce the exercise of rights guaranteed by the Act. Rossmore House, 269 N.L.R.B. 1176, 1177 (1984), aff'd sub nom. Hotel Employees & Rest. Employees Union, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.1985); accord 3-E Co., 26 F.3d at 3. "It is the coercive tendency of employer statements, not their actual effect, that constitutes a violation of the Act." Horizons Hotel Corp., 49 F.3d at 804 (alteration omitted) (emphasis added) (quoting NLRB v. Marine Optical, Inc., 671 F.2d 11, 18 (1st Cir.1982)) (internal quotation marks omitted). The Board's finding of "coercive tendency" will not be disturbed if the finding is reasonable, even if the evidence is also susceptible to an alternative interpretation. Id.

Like section 8(a)(1) of the Act, section 8(a)(3) defines an unfair labor practice. 29 U.S.C. § 158(a)(3). An employer violates section 8(a)(3), as well as section 8(a)(1), by discharging an employee for engaging in union activities.¹ Holsum de P.R., Inc. v. NLRB, 456 F.3d 265, 269 (1st Cir.2006). Resolving an alleged section 8(a)(3) violation thus requires an inquiry into the employer's motives. In NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), the Supreme Court set forth the test for determining whether an employer has an unlawful motive. Id. at 395, 404, 103 S.Ct. 2469. The Transportation Management Court adopted the test announced by the Board in Wright Line, 251 N.L.R.B. 1083, 1089 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.1981). Under the Wright Line test, the Board's General Counsel must first demonstrate that "the employee's protected conduct was a substantial or motivating factor in the adverse action." Transp. Mgmt., 462 U.S. at 401, 103 S.Ct. 2469; accord Holsum, 456 F.3d at 269. The General Counsel is not required to demonstrate that the employee's protected union activity was the sole factor for the discharge. Holsum, 456 F.3d at 269; accord NLRB v. Hosp. San Pablo, Inc., 207 F.3d 67, 70 (1st Cir.2000).

Once the General Counsel has made the showing that union animus was a motivating factor in the adverse employment action, the employer must prove, as an affirmative defense, that it would have taken the same action even in the absence of the employee's protected activity. Transp. Mgmt., 462 U.S. at 400-03, 103 S.Ct. 2469; Holsum, 456 F.3d at 269. Even if the employer proffers a "seemingly plausible explanation," the Board need not accept such an explanation at face value. E.C. Waste, Inc. v. NLRB, 359 F.3d 36, 42 (1st Cir.2004). Rather, "[i]f the Board supportably finds that the reasons advanced by the employer are either insufficient or pretextual, the violation is deemed proven." Holsum, 456 F.3d at 269 (quoting E.C. Waste, 359 F.3d at 42) (internal quotation marks omitted); accord Sociedad Espanola de Auxilio Mutuo y Beneficiencia de P.R. v. NLRB, 414 F.3d 158, 161 (1st Cir.2005).

Because an employer rarely admits unlawful discrimination, the Board may determine motive by relying on circumstantial evidence and inferences reasonably drawn from the totality of the evidence. E.C. Waste, 359 F.3d at 42; see also NLRB v. Link-Belt Co., 311 U.S. 584, 602, 61 S.Ct. 358, 85 L.Ed. 368 (1941). Among the factors the Board often considers in assessing the unlawfulness of an employer's motive are the timing of the adverse action in relation to the union activity, the employer's hostility toward union activity, and the employer's reliance on pretextual justifications. See, e.g., E.C. Waste, 359 F.3d at 42 (timing); id. at 43 (deep-seated hostility toward union activity); Hosp. San Pablo, 207 F.3d at 73-74 (pretext).

The Board's factual findings, including findings of unlawful motive and inferences from the facts, are binding on this court if supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e)-(f); E.C. Waste, 359 F.3d at 42; McGaw of P.R., Inc. v. NLRB, 135 F.3d 1, 7 (1st Cir.1997); see also NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 956 (2d Cir. 1988) ("[I]n cases where difficult issues regarding employer motivation are of primary concern, the Act vests primary responsibility in the Board to resolve these critical issues of fact."). "[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Hosp. San Pablo, 207 F.3d at 70 (alteration in original) (quoting Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 523, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981)) (internal quotation marks omitted).

We turn to the question of whether the Hospital has met its burden of showing that the Board's conclusions that the Hospital engaged in unfair labor practices are not supported by substantial evidence on the record as a whole. In that context we describe the pertinent facts.

II.

The Board sustained the ALJ's findings that the Hospital had threatened and disciplined Garcia for his union activities. Hosp. Cristo Redentor, 347 N.L.R.B. No. 65, at 1. There is adequate support in the record for those findings and conclusions. We summarize the record; more details are to be found in the Board's decision, 347 N.L.R.B. No. 65.

Garcia started working as a registered nurse at the Hospital in February 1995.² After a 1998 election, the Board certified a union to be the exclusive bargaining representative for a unit of registered nurses. Negotiations for a collective bargaining agreement started in November 1998. In January 1999, Garcia became the union delegate for the unit employees in the emergency room. In the meantime, the relationship between the Hospital and the union grew fractious. The union filed an unfair labor practice charge in April 1999. Over the next fifteen months, the union filed several additional unfair labor practice charges against the Hospital. The General Counsel issued a number of complaints.

After Garcia became a delegate, he received, for the first time, a written...