Longmont United Hosp. v. Nat'l Labor Relations Bd., 22-1262
| Docket Number | 22-1262,22-1285 |
| Decision Date | 13 June 2023 |
| Parties | Longmont United Hospital, Petitioner v. National Labor Relations Board, Respondent National Nurses Organizing Committee/National Nurses United, Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Argued April 14, 2023
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Patrick R. Scully argued the cause for petitioner. With him on the briefs were Heather F. Vickles and John T. Melcon.
Mark Kaltenbach, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Jennifer A. Abruzzo, General Counsel, Peter Sung Ohr, Deputy General Counsel, Ruth E. Burdick, Deputy Associate General Counsel, David Habenstreit, Assistant General Counsel, and Usha Dheenan, Supervisory Attorney.
Before: HENDERSON, KATSAS and PAN, Circuit Judges.
Longmont United Hospital (Longmont) petitions for review of the decision of the National Labor Relations Board (NLRB or Board), concluding that Longmont violated the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5), by refusing to bargain with the National Nurses Organizing Committee/National Nurses United, AFL-CIO (Union). Longmont does not dispute that it refused to bargain with the Union. Instead, it challenges the representation election whereby a group of registered nurses at Longmont elected the Union as its exclusive collective bargaining representative. Because Longmont's objections lack merit, we deny its petition for review and grant the Board's cross-application for enforcement.
In 2021, the Union petitioned the NLRB to represent a group of registered nurses at Longmont and the Board conducted an election by mail. As the Board collected and tallied the mail-in ballots, Longmont and the Union both challenged several of them, including Longmont's challenge to a ballot cast by Mysti Schalamon, a registered nurse at the facility. Longmont claims that Schalamon's ballot should not be counted because she failed to "sign" the outer envelope in accordance with the Board's requirements for an election by mail. See NAT'L LAB. RELS. BD., CASEHANDLING MANUAL, PART TWO: REPRESENTATION PROCEEDINGS § 11336.5(c) (2020) (ballots void when "returned in envelopes with no signatures or with names printed rather than signed").
Longmont also timely objected to the election, arguing that the Union engaged in ballot solicitation and that, as a result, the Board should set aside the election. In its offer of proof, Longmont submitted a screenshot of a text message allegedly sent to voting employees, with an image of a signed ballot envelope attached. Longmont asserts that the message gave employees the false impression that the Union was authorized to collect and inspect ballots. The text message came from an unspecified sender but context suggests that its sender was Kristine Kloster-another registered nurse at Longmont- because her signature appeared on the ballot envelope pictured in the attached image. Longmont sought a hearing to solicit Kloster's testimony about the communications she received from the Union and to confirm the Union's role in the alleged ballot solicitation scheme.
By order, the Board's Regional Director overruled Longmont's ballot solicitation objection and rejected its request for a hearing. In that order, the Regional Director also ruled on some but not all of the parties' outstanding challenges to individual ballots and ordered a revised tally. But after the revised tally, enough challenged ballots remained to affect the outcome of the election. Accordingly, the Regional Director ordered a hearing to determine whether the remaining ballots- including Schalamon's-should be counted.
At the hearing, each party presented evidence and Schalamon testified. Longmont submitted an exhibit with dozens of past signature samples from Schalamon's employment records-signatures resembling, in Schalamon's words, "a little bit of an M with a little squiggly at the end"- and contrasted those signatures with the marking on her ballot envelope, which contains her first initial and last name. Hearing Tr. 111:7-8 (J.A. 85). The Union submitted its own exhibit with photocopies of Schalamon's driver's license and social security card, two documents with markings similar to the marking on her ballot envelope. Schalamon identified the marking on her driver's license as her signature but explained that her social security card contains only her printed name. Schalamon also testified that her ballot envelope shows her signature and acknowledged that she uses the shorthand signature style that appears on her employment records when she is "in a hurry." Id.
The Hearing Officer recommended rejecting Longmont's challenge to Schalamon's ballot. He found Schalamon's testimony credible and concluded that she signed-and did not print-her name on the ballot envelope. The Board's Regional Director agreed and affirmed the Hearing Officer's determinations. Longmont requested review of the Regional Director's decision, which the Board denied. See 29 C.F.R. § 102.67(g) (). Schalamon's ballot ultimately provided the deciding vote in the election: the final election tally yielded 94 votes in favor of representation and 93 votes against. The Board then certified the Union's victory.
To obtain judicial review of the representation proceeding, Longmont refused to bargain with the Union and the Regional Director commenced this enforcement proceeding, charging Longmont with unfair labor practices in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5). Thereafter, the Board's General Counsel moved to transfer the proceeding from an administrative law judge to the Board and for summary judgment. See 29 C.F.R. §§ 102.24(a), 102.50. In her motion, the General Counsel asked the Board to order a make-whole remedy whereby Longmont would compensate the Union for its lost opportunity to bargain during the pendency of the enforcement proceeding. The General Counsel also asked the Board to overrule its longstanding precedent that forecloses the compensatory remedy she sought. See Ex-Cell-O Corp., 185 N.L.R.B. 107, 108-10 (1970) ( that the Board lacks statutory authority to order compensatory remedies in refusal to bargain cases).
The Board granted the transfer of the enforcement proceeding and the General Counsel's summary judgment motion. The Board declined to reconsider representation issues already decided by the Regional Director, determined that Longmont unlawfully refused to bargain and, as a remedy, ordered Longmont to bargain with the Union. See Longmont United Hosp., 371 N.L.R.B. No. 162, 2022 WL 5148275, at *1-3 (Sept. 30, 2022). But the Board expressly reserved decision on the General Counsel's request for a compensatory remedy, instead severing that issue for future consideration. Id. at *3. Longmont timely petitioned for review and the Board cross-applied for enforcement.
We have jurisdiction to review the petition and crossapplication under 29 U.S.C. § 160(e) and (f). Although we do not review the election certification directly, see, e.g., Alois Box Co. v. NLRB, 216 F.3d 69, 76 (D.C. Cir. 2000), we may consider representation issues during our review of the Board's final order granting summary judgment in the enforcement proceeding, see 29 U.S.C. § 159(d); Nat'l Hot Rod Ass'n v. NLRB, 988 F.3d 506, 508 (D.C. Cir. 2021). That the Board severed a remedial issue for future consideration does not affect our jurisdiction to consider Longmont's petition for review and adjudicate issues that the Board has resolved. See Stephens Media, LLC v. NLRB, 677 F.3d 1241, 1250 (D.C. Cir. 2012).
"We will uphold the Board's decisions if they are not arbitrary, capricious, or grounded in legal error, and if substantial evidence supports the Board's factual findings." RadNet Mgmt., Inc. v. NLRB, 992 F.3d 1114, 1119 (D.C. Cir. 2021); see 29 U.S.C. § 160(f). On representation and election issues, "we accord the Board an especially wide degree of discretion," 800 River Rd. Operating Co. v. NLRB, 846 F.3d 378, 385-86 (D.C. Cir. 2017) (quoting Randell Warehouse of Ariz., Inc. v. NLRB, 252 F.3d 445, 447-48 (D.C. Cir. 2001)), and ask "whether the Board has followed appropriate and fair procedures" and "reached a rational conclusion in addressing any objections to the election," PruittHealth-Virginia Park, LLC v. NLRB, 888 F.3d 1285, 1292 (D.C. Cir. 2018) (quoting Durham Sch. Servs., LP v. NLRB, 821 F.3d 52, 58 (D.C. Cir. 2016)). We review the Board's grant of summary judgment in the enforcement proceeding for abuse of discretion. See RadNet, 992 F.3d at 1128; Alois Box, 216 F.3d at 78.
Longmont presses three objections to the underlying Board proceedings. Two challenge the Regional Director's rulings in the representation proceeding and the third is to the Board's summary judgment grant in the enforcement proceeding.
First, Longmont claims that the Board abused its discretion in counting Schalamon's ballot. Longmont concedes that Schalamon is eligible to vote and did in fact cast the ballot in question; instead, it argues that Schalamon failed to "sign" her ballot envelope and therefore her ballot is void. We disagree.
In an election by mail, voting employees must sign the outer return envelope when they mail their completed ballot. Each ballot envelope instructs voters to See Hearing Tr. Emp. Ex. 5 (J.A. 163). Ballots "returned in envelopes with no signatures or with names printed rather than...
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