N.L.R.B. v. Good Shepherd Home, Inc.

Decision Date29 May 1998
Docket NumberAFL-CIO,Nos. 97-5192,97-5314,s. 97-5192
Citation145 F.3d 814
Parties158 L.R.R.M. (BNA) 2394, 135 Lab.Cas. P 10,169 NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent, United Food and Commercial Workers International Union,/CLC, Local 911, Intervenor, v. GOOD SHEPHERD HOME, INC., Respondent/Cross-Petitioner.
CourtU.S. Court of Appeals — Sixth Circuit

Fred L. Cornnell, Jr. (briefed), Daniel J. Michalski (argued and briefed), N.L.R.B., Office of the General Counsel, Washington, DC, Aileen A. Armstrong (briefed), N.L.R.B., Appellate Court Branch, Washington, DC, for Petitioner/Cross-Respondent.

Ted Iorio (briefed), Christine A. Reardon (argued and briefed), David E. Weisblatt, Kalniz, Iorio & Feldstein, Toledo, OH, for Intervenor.

George Roger King (argued and briefed), Gregory W. Guevara (briefed), Jones, Day, Reavis & Pogue, Columbus, OH, Paul P. DeCamp, Irell & Manella, Los Angeles, CA, for Respondent/Cross-Petitioner.

Before: KENNEDY, WELLFORD, and SILER, Circuit Judges.


WELLFORD, Circuit Judge.

Good Shepherd Home, Inc. ("Good Shepherd") is a small non-profit nursing home located in rural Fostoria, Ohio. On September 15, 1995, the Union filed a petition with the Board, seeking certification as the collective bargaining representative for a unit of the employees at Good Shepherd. On November 2, 1995, the Board conducted a secret ballot election, which resulted in 57 votes for the Union and 40 votes against the Union, with none challenged.

On November 9, 1995, Good Shepherd filed an objection to the election, alleging that the Union paid significant sums of money to employees to induce them to support the Union. After conducting an administrative investigation, the Regional Director issued a report on December 7, 1995, recommending that the objection be overruled. Good Shepherd filed exceptions to the report. On May 31, 1996, the Board (Chairman Gould and Member Browning; Member Cohen, concurring) rejected Good Shepherd's exceptions and certified the Union as the exclusive bargaining representative of the unit of employees.

Good Shepherd challenged the certification by refusing to give the Union certain information and by refusing to bargain. On July 11, 1996, the Union filed an unfair labor practice charge against Good Shepherd based on that conduct. After an investigation, the Board's general counsel issued a complaint alleging that Good Shepherd's actions violated §§ 8(a)(5) and (1) of the Act (29 U.S.C. §§ 158(a)(5) and (1)). Good Shepherd admitted that it refused to bargain, but it claimed that its refusal was not unlawful because the Union was not appropriately certified.

The general counsel filed a motion for summary judgment, and Good Shepherd filed a cross-motion for summary judgment. On September 30, 1996, the Board (Chairman Gould and Members Browning and Higgins) granted the general counsel's summary judgment motion. The Board found that "[a]ll representation issues raised by [Good Shepherd] were or could have been litigated in the prior representation proceeding," and that Good Shepherd did not offer to adduce "any newly discovered and previously unavailable evidence, nor [did] it allege any special circumstances" that would require the Board to modify the May 21, 1995 decision at the representation proceeding. In addition, the Board found that the information requested by the Union was "necessary and relevant." Accordingly, the Board issued appropriate remedies based upon Good Shepherd's refusal to bargain. Good Shepherd now appeals from that order.

Good Shepherd's argument that the certification was improper hinges on one allegedly inappropriate incident. On November 1, 1995, the day before the representation election, an organizing director for the Union handed part-time employee Brian Shaver $25 in cash in the presence of other employees. Shaver was a part-time employee and a full-time student at a college in Bluffton, which is about 31 miles from the Fostoria nursing home. 1 He had not been scheduled to work on the day of the election, and the $25 payment was purportedly to cover Shaver's travel expenses to and from work on November 2 so he cast his vote. Good Shepherd argued that the $25 was improper because that amount exceeded Shaver's actual travel expenses.

At the representation hearing, the Board found that the Union "has reimbursed the employee based on a good-faith, reasonable estimate of his actual travel costs." The Board considered the fact that Shaver travelled at least 31 miles each way in order to cast his vote, and that under the IRS reimbursement rate of $.30 a mile, his expenses would be $18.60. In light of that fact, the Board surmised that the $25 paid to Shaver was not "so excessive as to raise a question about the good faith of the Union." The Board, therefore, concluded that, "because the conduct at issue involves only the good-faith attempt to cover the actual travel expenses of an employee who would not have otherwise been able to vote, we find ... that no objectionable conduct occurred warranting a setting aside of the election." In reaching that conclusion, the Board relied in part on Sunrise Rehabilitation Hospital, 320 NLRB 212, 1995 WL 791954 (Dec. 19, 1995).

Because Good Shepherd continued to refuse to bargain, the NLRB has petitioned this court to enforce its September 30 order, and Good Shepherd cross-petitioned for review. Good Shepherd maintains the position that the payment to Shaver was excessive and that it tainted the election. The Local Union filed an amicus brief supporting the Board's rationale.

The appropriate standard of review is set out in NLRB v. Pentre Elec., Inc., 998 F.2d 363 (6th Cir.1993):

We sustain the Board's findings of fact only so long as they are supported by substantial evidence on the record viewed as a whole.... We also review the Board's application of the law to particular facts under the substantial evidence standard.... [Substantial evidence] means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.... We review the Board's conclusions of law de novo. ... If the Board errs in determining the proper legal standard, we may refuse enforcement on the grounds that the order has no reasonable basis in law.

Pentre Elec., 998 F.2d at 368 (citations and quotations omitted). We examine the entire record to determine whether substantial evidence supports the Board's decision, and whether its conclusion is supported by law.

The parties agree that it is permissible to reimburse an employee for transportation expenses that relate to attending a Board election, because such payments are in furtherance of the electoral process. See NLRB v. Basic Wire Products, Inc., 516 F.2d 261, 264-65 (6th Cir.1975) (permissible for a Union to pay $20 to an employee where the payment appeared to be for expenses related to transportation to the preelection meetings); Lawrence Sec., Inc., 210 NLRB 1048, 1048, 1974 WL 4977 (1974) (Union's offer to reimburse employees for parking at election was in furtherance of electoral process); Federal Silk Mills, 107 NLRB 876, 877 (1954) (Union's payment of $3.00 to employee carpool drivers was not objectionable because payment made the process available to those who otherwise may have not been able to participate). Good Shepherd argues that the payment to Shaver in the instant case exceeded his transportation expenses and may have constituted an impermissible "reward" for voting in favor of the Union. In support of that position, Good Shepherd claims that the Board misapplied the Board's most recent case on this subject, Sunrise Rehabilitation Hosp., supra. 2

In Sunrise, the Board found objectionable a handbill that was passed out by the employer which stated that any employee not scheduled to be at work on election day could come to work and vote, and that employee would receive two hours pay, transportation to and from the facility, and child care on the premises, if needed. At the bottom of the handbill, it...

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