Inova Health Sys. v. Nat'l Labor Relations Bd.

• Decision Date: 24 July 2015
• Docket Number: 14–1176.,Nos. 14–1144,s. 14–1144
• Citation: 795 F.3d 68
• Parties: INOVA HEALTH SYSTEM, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

795 F.3d 68

INOVA HEALTH SYSTEM, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 14–1144

14–1176.

United States Court of Appeals, District of Columbia Circuit.

Argued March 16, 2015.

Decided July 24, 2015.

Maurice Baskin, argued the cause and filed the briefs, for petitioner.

Barbara A. Sheehy, Attorney, National Labor Relations Board, argued the cause, for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Jill A. Griffin, Supervisory Attorney.

Before: ROGERS and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge.

Opinion

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge:

Inova Health System (“Inova”) operates several hospitals in Northern Virginia. In June 2014, the National Labor Relations Board ruled that Inova had unlawfully discharged, disciplined, or failed to promote certain nurses because they had engaged in concerted activities protected by the National Labor Relations Act, 29 U.S.C. § 158(a)(1). Inova views the events at issue differently and asks this court to overturn the Board's decision. That we cannot do. Our review of such Board decisions is narrow and “highly deferential.” Parsippany Hotel Mgmt. Co. v. NLRB, 99 F.3d 413, 419 (D.C.Cir.1996). Because each of the Board's determinations is reasoned and supported by substantial evidence, we must deny the petition for review and grant the Board's petition for enforcement, regardless of whether we might “ ‘have reached a different result had we considered the question de novo. ’ ” Id. (quoting Synergy Gas Corp. v. NLRB, 19 F.3d 649, 651 (D.C.Cir.1994) ).

IStatutory Background

The National Labor Relations Act, 29 U.S.C. §§ 151 et seq., protects the right of employees to engage in “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[.]” Id. § 157. But the Act's protections are not limited to such union-related activities. The Act also grants employees the right “to engage in other concerted activities for the purpose of * * * mutual aid or protection.” Id. “Other concerted activities” are actions “undertaken” by an employee “with or on the authority of other employees, and not solely on behalf of the employee himself.” Citizens Inv. Services Corp. v. NLRB, 430 F.3d 1195, 1198 (D.C.Cir.2005). And those concerted activities will be for “mutual aid or protection” if they “relate to legitimate employee concerns about employment-related matters.” Tradesmen Int'l, Inc. v. NLRB, 275 F.3d 1137, 1141 (D.C.Cir.2002) (internal quotation marks omitted); Venetian Casino Resort v. NLRB, 484 F.3d 601, 606 (D.C.Cir.2007) (“ ‘[M]utual aid or protection’ * * * include[s] employee efforts to ‘improve terms and conditions of employment or otherwise improve their lot as employees[.]’ ”) (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978) ). Put plainly, the Act “protect[s] the right of workers to act together to better their working conditions.” NLRB v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962).

To that end, the Act prohibits all employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of th[ose] rights.” 29 U.S.C. § 158(a)(1). If an employer runs afoul of that prohibition, the aggrieved employee can file an unfair labor practice charge with the local Regional Director of the National Labor Relations Board. 29 C.F.R. § 101.2. If the Regional Director determines that the charge has merit, then that Director can file a formal complaint against the employer. 29 U.S.C. § 160(b) ; 29 C.F.R. § 101.8. An administrative law judge (“ALF”) will hear the case and issue a decision that makes factual findings, credibility determinations, legal conclusions, and a remedial recommendation. See 29 C.F.R. §§ 101.10(a), 101.11(a).

Either party may seek review of the ALJ's decision by the Board, 29 C.F.R. § 101.11(b), which generally sits in three-member panels, 29 U.S.C. § 153(b) ; New Process Steel v. NLRB, 560 U.S. 674, 688, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010) (Board's power can be vested in no fewer than three members). The Board will review the entire record and issue a decision in which it adopts, modifies, or rejects the factual findings and legal recommendations of the ALJ. 29 C.F.R. § 101.12(a). In doing so, the Board's longstanding policy is not to overrule an ALJ's credibility judgments unless “the clear preponderance of all the relevant evidence convinces” the panel that the determination is incorrect. E.N. Bisso & Son, Inc. v. NLRB, 84 F.3d 1443, 1444 (D.C.Cir.1996) ; Standard Dry Wall Products, 91 N.L.R.B. 544 (1950). Any party aggrieved by the Board's final decision can seek review either in this court or in the United States Court of Appeals for the circuit where the unfair labor practice occurred or where the petitioning party resides or transacts business. 29 U.S.C. § 160(f) ; 29 C.F.R. § 101.14.

Factual Background

This case arises from Inova's discipline or discharge of three nurses in the ambulatory surgery center of Inova's Fairfax, Virginia campus.

Donna Miller

Donna Miller worked for Inova for nearly a quarter century prior to her discharge, including seven years in the ambulatory surgery center. There she rose to the level of Registered Nurse III. Colleagues described Miller as a “fabulous nurse,” an “excellent clinician,” “very efficient,” and completely trustworthy.

In early 2009, Inova received three anonymous phone calls complaining about Miller. Although Miller did not have the authority to change anyone's schedule, the first caller accused Miller of vindictively changing the schedules of employees she did not like. The second caller said that Miller had used profanity in the operating room “for years,” occasionally talked about sexual situations, and made others uncomfortable. The third caller accused Miller of intimidating coworkers, frequently using profanity, and taking extended lunch breaks. Following the third call in early February, Inova's human resources manager, Leanne Gorman, began investigating Miller, unbeknownst to Miller.

Around that same time, Miller and four other nurses discussed problems they were having with the hospital's nursing fellows program.¹ Specifically, the nurses were concerned that they were not being informed of the objectives for their nursing fellows to meet, were not asked for feedback on the fellows, and were in need of a one-week break between fellow rotations. The nurses agreed that Miller would send an email on their collective behalf to Paige Migliozzi, the head of the program, to convey those shared concerns.

On February 13th, Miller sent an email to Migliozzi and copied Paula Graling, the head of the ambulatory surgical center, spelling out the nurses' concerns with the fellows program. The email enraged Migliozzi. She sought out the nurses, demanded to know if Miller was the leader of their group, sent a copy of the email to human resources, and explained to human resources that she was “furious” that Miller “decided to appoint herself as spokesperson for this group.” Deferred Appendix (“App.”) 408. Graling also called human resources about the email, and sent a reply which chastised Miller and the nurses for sending a “group signed email which puts everyone on the defensive” rather than approaching her directly. Id. at 864.

Leanne Gorman and the human resources staff investigating Miller interviewed Migliozzi and eighteen additional employees, eight of whom were selected because they were known to have negative opinions about Miller. The eighteen interviewees were asked if they had seen any violation of Inova's policies or standards of behavior, if they had been made uncomfortable by other employees, or if they had witnessed inappropriate behavior in the workplace. Human resources, however, did not ask Migliozzi those standard questions, but instead specifically solicited information about her problems with Miller. Unsurprisingly, Migliozzi's comments were, by far, the most negative, complaining that Miller frequently talked about her intimate affairs, cursed, and did not properly count surgical instruments.

After speaking with Migliozzi about Miller's email, Gorman spoke with the Chief of Surgery, Dr. Russell Seneca, about her investigation of Miller. Gorman recorded in her notes that Dr. Seneca “fully support[ed]” Miller's termination. App. 425. Dr. Seneca instructed Gorman not to involve any doctors in her investigation because “they would not be happy about the decision” to terminate Miller. Id. Human resources closely involved Dr. Seneca in this personnel matter, and updated him constantly in the days leading to Miller's termination.

The next day, just two work days after Miller's February 13th email about problems with the nursing fellows program, Graling and Gorman informed Miller of the investigation and placed her on administrative leave. Miller denied all but one allegation. She admitted that a doctor asked her what she did on New Year's Eve, and that she responded by saying she spent the evening naked in a hot tub with her husband. Miller denied that she used profanity or sexual innuendo any more than the doctors or other nurses, and explained that she did not try to be intimidating, but she was “definite about what [she] think[s],” which might have been perceived as intimidating by others. App. 425.

Miller also provided Gorman with a list of fourteen people she believed would attest to her professionalism, but Gorman refused to interview additional people on the ground that it “was not part of the investigation that [human resources] had chosen to go about.” App. 127. Gorman then instructed Miller not to discuss her suspension with anyone other than her husband. Miller asked “are...