N.L.R.B. v. Windham Community Memorial Hosp., 658

• Citation: 577 F.2d 805
• Decision Date: 12 May 1978
• Docket Number: D,No. 658,658
• Parties: 99 L.R.R.M. (BNA) 2242, 83 Lab.Cas. P 10,602 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WINDHAM COMMUNITY MEMORIAL HOSPITAL and Hatch Hospital Corporation, Respondent. ocket 77-4187.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 805

577 F.2d 805

99 L.R.R.M. (BNA) 2242, 83 Lab.Cas. P 10,602

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WINDHAM COMMUNITY MEMORIAL HOSPITAL and Hatch Hospital Corporation, Respondent.

No. 658, Docket 77-4187.

United States Court of Appeals Second Circuit.

Argued Feb. 9, 1978.

Decided May 12, 1978.

Arnold B. Podgorsky, N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John G. Elligers, N. L. R. B., Washington, D. C., of counsel), for petitioner.

Robert B. Snow, Jr., New Haven, Conn. (Wiggin & Dana, New Haven, Conn., of counsel), for respondent.

Before FEINBERG, HAYS and MANSFIELD, Circuit Judges.

HAYS, Circuit Judge:

Petitioner, the National Labor Relations Board (the NLRB or the Board) seeks enforcement of an order, 230 N.L.R.B. No. 156 (1977), entered pursuant to Sections 8(a)(5) and (1) and Section 10 of the National Labor Relations Act ¹ (the Act), requiring Respondent Windham Community Memorial Hospital and Hatch Hospital Corporation (the Hospital): to cease and desist from certain unfair labor practices; to recognize and bargain, on request, with Windham Community Memorial Hospital, Registered Nurses Unit 62, Connecticut Nurses Association (the Union); and to reinstate with back pay, or otherwise make whole, all striking employees. We reject the Hospital's arguments in opposition to this petition and enforce the NLRB's order in all respects.

I

On August 7, 1975, non-supervisory nurses employed at the Hospital held an election. A two-thirds majority of those voting selected the Connecticut Nurses Association as their collective bargaining representative. ² The Union was certified by the NLRB on August 15, 1975, and negotiations commenced on November 6, 1975. After several negotiating sessions, major issues remained unresolved and the Union voted to engage in an economic strike. The strike commenced on April 21, 1976. Negotiations continued for a time, but were suspended on June 9, 1976.

On August 23, 1976, Mary Lou Millar, a Union agent, called Robert B. Snow, Jr., the Hospital's attorney and a member of the negotiating team, and told him that the Union would like to resume bargaining. The substance of this conversation is disputed: Snow alleges that he was told that resumption of negotiations was preconditioned on reinstatement of 23 employees and on the Union's "getting something to show for the strike"; Millar claims that she merely indicated the Union's willingness to make certain concessions, such as reducing the number of employees to be immediately reinstated from 42 to 23 and altering wage demands.

Snow immediately contacted the Hospital's administrator, Frank E. Ritchie, and communicated the Union's desire to resume negotiations. At that time, Ritchie advised Snow that the Hospital would no longer negotiate with the Union because it felt that the Union no longer had the support of a majority of the Hospital's employees. Later that day, the Union learned that the Hospital had refused to bargain and had withdrawn recognition from the Union.

It is undisputed that approximately 57 employees initially engaged in the strike; that 9 striking employees returned to work before August 23, 1976; and that by August 23, 1976, the Hospital had hired 42 replacement employees. The Administrative Law Judge, in findings adopted by the NLRB, set the number of employees who never went on strike at 15 ³ and the number of striking employees who resigned prior to August 23, 1976, at 6. ⁴ It is undisputed that the quality and quantity of picketing gradually diminished over the months, and that such activities were officially terminated by the Union on August 6, 1976. The significance of this diminution, however, is hotly contested. The Hospital claims that the Union abandoned the strike and that diminution in enthusiasm for picketing indicates diminution in support for the Union. The Union claims, however, that the reduction of picketing activity is attributable to the combination of several different factors: summer vacations, family responsibilities engendered by school vacations, and the strikers' feelings that additional picketing was no longer necessary because the continuation of the strike itself was sufficient to notify the Hospital that the Union was still pressing its claims.

On October 4, 1976, the Union filed an unfair labor practice charge against the Hospital, alleging a refusal to bargain in violation of Section 8(a)(5) of the Act. A hearing was held before an Administrative Law Judge of the NLRB on March 15, 1977. In a decision issued on May 9, 1977, ⁵ the Administrative Law Judge made certain findings of fact and concluded that the Hospital had improperly refused to bargain on August 23, 1976; it had failed to prove that its withdrawal of recognition was justifiable under the standards established by the NLRB and the courts. He also found that the Hospital's misconduct had converted the Union's economic strike into an unfair labor practice strike, thus making reinstatement of strikers an appropriate remedy. ⁶

The NLRB adopted the Administrative Law Judge's opinion with modifications, ⁷ and purported to clarify its policy with respect to the presumptions of Union support concerning striker replacements. Windham Memorial Community Hosp. and Hatch Hosp. Corp., 230 N.L.R.B. No. 156 (1977). It entered the above-described order for which it now seeks enforcement. The Hospital opposes enforcement, arguing that its refusal to bargain with the Union was the proper response to the Union's allegedly preconditioned offer to return to the bargaining table, that its withdrawal of recognition of the Union was based on a serious good faith doubt of the Union's majority status, and that reinstatement of strikers and payment of back pay are inappropriate remedies because there is not sufficient evidence in the record to support the NLRB's finding that the Hospital's alleged misconduct converted the economic strike into an unfair labor practice strike.

II

The applicable standard of consideration on a petition for enforcement of an NLRB order is whether the NLRB's findings are "supported by substantial evidence on the record considered as a whole . . . ." 29 U.S.C. § 160(e) (1970). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Hospital argues that no such evidence supports the NLRB's finding that the Hospital violated Sections 8(a)(5) and (1) of the Act by refusing to bargain with and withdrawing recognition from the Union.

The Hospital first contends that its failure to return to the bargaining table in response to the Union's August 23rd initiative did not constitute a "refusal to bargain" within the meaning of Section 8(a)(5) of the Act. It seeks to justify its refusal by alleging that the Union's offer was preconditioned and by arguing that the Act does not require the Hospital to accept such an offer. The Hospital states that "neither the Administrative Law Judge nor the Board made any finding with regard to the precondition."

It is not at all clear from the record that no finding on this question was made. At the hearing before the Administrative Law Judge, witnesses Millar and Snow offered contradictory testimony about the substance of the August 23rd telephone conversation, ⁸ thereby establishing that the nature of the offer to resume negotiations was in dispute. And, while the Administrative Law Judge did not specifically state that he found that no condition had been imposed by the Union, his finding of fact with respect to the telephone call indicates that he credited Millar's rather than Snow's version of the exchange. He found the substance of Millar's communication to be "that some movement could be made with regard to the matter of wages and the formula by which Respondent would take back the striking employees." Windham Memorial Community Hosp. and Hatch Hosp. Corp., 230 N.L.R.B. No. 156, ALJ at 4 (1977). Thus, he apparently found as a fact that the discussion dealt not with preconditions to negotiating, but with offers to compromise in the areas of wage demands and striker reinstatement. The NLRB did not disturb this finding.

Even if the Administrative Law Judge's opinion is not read as resolving the dispute as to the nature of the offer to return to the bargaining table, denial of the petition for enforcement or remand for a specific ruling on this question is not required. While it has been held by the NLRB that the imposition by one party, as a condition precedent to agreement, of a condition which can be lawfully refused by the other party permits the other party to refrain from negotiating until the condition is withdrawn, Midwestern Instruments, Inc., 133 N.L.R.B. 1132, 1140-41 (1961), the Hospital cannot benefit from this rule. It did not meet with the Union, as did the employer in Midwestern Instruments, to voice its objections to the imposition of the alleged conditions, nor did it inform the Union that it would not negotiate under those conditions. Instead of merely refusing to bargain until the alleged conditions were withdrawn, the Hospital chose immediately to withdraw recognition from the Union. ⁹ Even under the Hospital's version of the August 23rd telephone conversation, this was not an appropriate response. ¹⁰ Then, unless the withdrawal of recognition was justifiable under some other theory, it clearly constituted a "refusal to bargain" within the meaning of Section 8(a)(5) of the Act.

III

Except under "unusual circumstances," a union's representative status is irrebuttably presumed to continue during the first year following certification, so that the collective bargaining relationship has the opportunity to become established. Brooks v. NLRB, 348 U.S. 96, 98-104, 75 S.Ct. 176, 99 L.Ed. 125 (1954). Withdrawal of recognition during this period is an unfair labor...