Nat'l Labor Relations Bd. v. St. Francis Healthcare Centre

Decision Date26 October 1999
Docket NumberV,CROSS-RESPONDEN,98-6401,CROSS-PETITIONER,Nos. 98-6297,s. 98-6297
Citation212 F.3d 945,2000 WL 640545
CourtU.S. Court of Appeals — Sixth Circuit

Aileen A. Armstrong, Dep. Asso. Gen. Counsel, Frederick C. Harvard, Robert J. Englehart, Frederick C. Havard, John D. Burgoyne, National Labor Relations Board, Appellate Court Branch, Washington, D.C., for Petitioner.

G. Roger King, Brian G. Selden, Jones, Day, Reavis & Pogue, Columbus, Ohio, for Respondent Cross-Petitioner.

Before: Ryan and Cole, Circuit Judges; Wilhoit, District Judge.*

RYAN, J., delivered the opinion of the court, in which WILHOIT, D. J., joined. COLE, J. (pp. 967-69), delivered a separate concurring opinion.


Ryan, Circuit Judge.

These consolidated appeals arise out of the efforts of the Health Care and Social Services Union, SEIU, AFL-CIO (Union), to become the certified bargaining representative for certain employees of St. Francis Healthcare Centre. Following two elections, the National Labor Relations Board certified the Union as the bargaining representative. The Board now seeks enforcement of the bargaining order it issued following the second election, which the Union won. St. Francis cross-petitions for review of the Board's decision to set aside the first election, which the Union lost, as well as the Board's refusal to review St. Francis's objections to the second election.

We will deny enforcement of the Board's bargaining order and remand the case to the Board to conduct an evidentiary hearing on St. Francis's objection to the second election.

I. Standard of Review

A party who seeks to overturn the results of a representation election bears the burden of demonstrating that the election was conducted unfairly. To meet this burden, "the objecting party must demonstrate that 'unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the result of the election.'" Contech Div., SPX Corp. v. NLRB, 164 F.3d 297, 305 (6th Cir. 1998) (quoting NLRB v. Shrader's, Inc., 928 F.2d 194, 196 (6th Cir. 1991)), cert. denied, 120 S. Ct. 64 (1999). While the Board strives to achieve "laboratory conditions" during representation elections, we have recognized that this can be an elusive goal, and so "elections are not automatically voided whenever they fall short of perfection." NLRB v. Duriron Co., 978 F.2d 254, 256 (6th Cir. 1992).

We review for abuse of discretion the Board's determination whether a representation election has allowed employees to exercise free choice. Colquest Energy, Inc. v. NLRB, 965 F.2d 116, 119 (6th Cir. 1992). The Board's findings of fact are conclusive iF.Supp.orted by substantial evidence. Evidence is substantial when it is "'adequate, in a reasonable mind, to uphold the [Board's] decision.'" DTR Indus., Inc. v. NLRB, 39 F.3d 106, 110 (6th Cir. 1994) (quoting Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 295 (6th Cir. 1985)). We must consider the record as a whole, including evidence that runs contrary to the Board's findings. Id. Deference to the Board's factual findings is particularly appropriate where conflicting testimony requires the Board to make credibility determinations. Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987); see also V&S ProGalv, Inc. v. NLRB, 168 F.3d 270, 275 (6th Cir. 1999). The Board's application of law to facts is also reviewed under the substantial evidence standard, and "'the Board's reasonable inferences may not be displaced on review even though the court might justifiably have reached a different conclusion had the matter been before it de novo.'" V&S ProGalv, 168 F.3d at 275 (citation omitted).

II. The First Election

St. Francis is an Ohio not-for-profit corporation operating a rehabilitation hospital and skilled nursing facility in Green Springs, Ohio. In July 1996, District 1199 of the Union filed a petition with the Board seeking to represent approximately 150 full- and part-time service and maintenance employees at St. Francis's facility. An election was held on October 3 and 4, 1996; 71 employees voted against the Union, 60 voted for the Union, and there were 10 challenged ballots.

The Union filed objections to the election with the NLRB Regional Director. Following a hearing, a hearing officer recommended that the election be set aside and a new election be conducted, based upon three of the Union's objections. Specifically, the hearing officer found that St. Francis had: (1) threatened that unionization would prevent St. Francis from affiliating with a partner, forcing the facility to close within 18 months; (2) threatened to reduce or eliminate current employee benefits during the bargaining process; and (3) prohibited employees from wearing pro-Union insignia on their uniforms and enforced its no-solicitation policy in a discriminatory manner. St. Francis appealed this decision to the Board, which adopted the hearing officer's findings and recommendations and ordered a new election.

We proceed to address the Board's three grounds for ordering a second election.


St. Francis's Statements Concerning Facility's Long-Term Viability


St. Francis's management decided in 1995 to seek potential partners in the health care industry in order to compete more effectively. The company conducted monthly "open forum" meetings at which senior management shared, with all employees who chose to attend, strategic information about the company and its financial situation and explored the possibility of affiliation. At a September 18, 1996, open forum conducted during the Union's organizing campaign, an employee asked St. Francis's CEO, Gregory Storer, whether a vote for Union representation would affect the ability to find a partner. Storer testified before the hearing officer that he responded by explaining that the most likely partner did not have any organized labor contracts and had expressed "concerns" about labor organization at St. Francis. According to Storer, he told employees that the potential partner "wanted to know how it was going and the progress and when the vote was going to take place." Another employee attending the open forum then asked Storer how long St. Francis could survive without a partner. According to Storer, he responded that the organization's current cash reserves would probably allow it to operate for about 18 months.

Employees recalled Storer's statements during the September 18 open forum somewhat differently, testifying as follows:

1.According to Colleen Kimmet, a nurse, Storer stated that St. Francis needed to affiliate with another institution, and that "no hospital or institution would want to affiliate with St. Francis if it was unionized, and without affiliation St. Francis would close in a year and a half."

2.Karen Slagle, a housekeeper, testified that "[Storer] said that if the union got in that other hospitals would not want to affiliate with us and that financially our doors would close in a year and a half." Slagle then responded to a question from the Union representative:

Q: . . . And so [Storer] told people that hospitals wouldn't take you if you voted for the union, is that what you-

A: It wouldn't be attractive to other hospital groups.

3.Melanie Ott, a nurse's assistant, recalled that Storer stated that "if the union got in that nobody would be affiliated with us because they wouldn't work with a unionized facility. And if it got through that the doors would close within a year, year and a half, because we couldn't stand alone."

4.According to Naomi Rose, a patient care technician, Storer stated "that the alliance would not join with us if we was union, and that if we became union St. Francis would have to close in a year and a half, because nobody would affiliate with us." On cross-examination, the following colloquy took place:

Q: . . . [Y]ou understood that his remarks were based upon the inability of the hospital to affiliate in the event the union were voted in?

A: Yes, sir.

Q: . . . And he expressed his belief that the facility would not be an attractive candidate for affiliation if the union were voted in?

A: Yes, sir.

Q: And for that reason, without affiliation, . . . the facility would close?

A: Yes, sir.

Pro-management literature also addressed affiliation. For example, Sue Fretz, an RN manager who supervised approximately 80 employees, admitted that she obtained from management a "doctored" Union leaflet which stated, in part:



Fretz circulated this leaflet to her subordinates at meetings, highlighting the language concerning affiliation and warning that unionization could jeopardize the facility's affiliation prospects.

The hearing officer credited the employees' testimony over Storer's testimony and concluded that Storer's predictions about the impact of unionization on affiliation were exaggerated. Taken in conjunction with the prediction that the facility would close within 18 months without a partner, the hearing officer found that Storer effectively threatened to close the facility in violation of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Board adopted the hearing officer's findings and ordered a new election based, in part, on these findings.


St. Francis contends that the record does not support a threat. It...

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