Nat'l Labor Relations Bd. v. Me. Coast Reg'l Health Facilities

• Citation: 999 F.3d 1
• Decision Date: 26 May 2021
• Docket Number: No. 20-1589,20-1589
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, Cross-Respondent, v. MAINE COAST REGIONAL HEALTH FACILITIES, d/b/a Maine Coast Memorial Hospital, the sole member of which is Eastern Maine Healthcare Systems, Respondent, Cross-Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

999 F.3d 1

NATIONAL LABOR RELATIONS BOARD, Petitioner, Cross-Respondent,

v.MAINE COAST REGIONAL HEALTH FACILITIES, d/b/a Maine Coast Memorial Hospital, the sole member of which is Eastern Maine Healthcare Systems, Respondent, Cross-Petitioner.

No. 20-1589

United States Court of Appeals, First Circuit.

May 26, 2021

Eric Weitz, Attorney, National Labor Relations Board, with whom Kira Dellinger Vol, Supervisory Attorney, Peter B. Robb, General Counsel, Alice B. Stock, Deputy General Counsel, Ruth E. Burdick, Acting Deputy Associate General Counsel, and David Habenstreit, Assistant General Counsel, were on brief, for petitioner, cross-respondent.

Joshua A. Randlett, Bangor, ME, with whom Brent A. Singer, Bangor, ME, and Rudman Winchell were on brief, for respondent, cross-petitioner.

Before Kayatta and Barron, Circuit Judges, and Smith,^* District Judge.

SMITH, District Judge.

We review a decision and order of the National Labor Relations Board ("Board" or "NLRB"), which concluded that Maine Coast Regional Health Facilities, d/b/a Maine Coast Memorial Hospital, the sole member of which is Eastern Maine Healthcare Systems ("MCMH"), violated federal labor laws by firing an employee for a letter she wrote to the editor of a local newspaper. The Board also determined that MCMH committed a separate violation by maintaining a media policy prohibiting contact between employees and the media. We affirm those conclusions. However, we agree with MCMH that the Board improperly extended its remedy to MCMH's parent corporation, Eastern Maine Healthcare Systems ("EMHS"), which was not a party to the proceeding. Thus, we grant the Board's application for enforcement, striking from the order the portions of the remedy requiring repudiation notices to be posted at locations other than MCMH.

I. Background

In 2015, in response to ongoing operating losses, MCMH reorganized with EMHS as its sole corporate member. EMHS is a healthcare network that maintains similar relationships with several other hospitals in Maine. As part of the merger, EMHS installed its own employees in various management positions at MCMH.

Following the merger, MCMH cancelled the contracts of most physicians at the hospital, discharging some and forcing the remaining physicians to renegotiate their contracts, leading many to resign in protest. Around the same time, concerns about nurse staffing levels led to a new collective bargaining agreement with the nurses' union. Despite the new agreement, understaffing caused by MCMH's failure to replace departing nurses remained a problem for union members and others. Although they did not file formal grievances, the nurses protested by placing a sticky note on the locker of each departed nurse. Additionally, in 2017, leadership from the union presented a petition, signed by over sixty employees, to management. The petition bemoaned a lack of staffing, criticized the administration for inadequately supporting nurses, and demanded specific changes to achieve compliance with the nurses' contract and to address understaffing.

Karen-Jo Young, an activities coordinator in the rehabilitation area of the hospital, became aware of the concerns of the nurses' union and the physicians. She was present for conversations among nurses, physicians, and other staff regarding the effects of the physicians' departures and the nurses' understaffing. She also observed the sticky note locker protest. Moreover, she felt the effects of the understaffing ripple over to her work because her job involved helping with nursing activities. Finally, she read articles and letters to the editor in the Ellsworth American , a local newspaper, discussing the labor disputes. One article described the nurses' petition and stated that, according to a nurses' union steward, the union had tried to follow the proper grievance procedures prior to submitting the petition.

Young submitted a letter to the editor of the Ellsworth American . In her letter, she referenced the previous newspaper pieces and expressed support for the nurses and doctors in their respective labor disputes. She applauded the nurses for submitting their petition, urged management to heed the nurses' staffing demands, and opined that they were rightly concerned about risks to patient safety posed by understaffing. She also criticized management as unduly allegiant to EMHS and out of touch with patient care, arguing that these shortcomings negatively affected hospital staff and the local community. Young did not discuss her letter with any other employee prior to submitting it.

Throughout these events, MCMH maintained the following media policy, which EMHS had instituted at all of its subsidiaries:

No EMHS employee may contact or release to news media information about EMHS, its member organizations or their subsidiaries without the direct involvement of the EMHS Community Relations Department or of the chief operating officer responsible for that organization. Any employee receiving an inquiry from the media will direct that inquiry to the EMHS Community Relations Department, or Community Relations staff at that organization for appropriate handling.

Just hours after Young's letter was published, MCMH terminated her employment, citing the media policy. Prior to Young's discharge, no employee had ever been disciplined for violating EMHS's media policy. EMHS later revised the policy, adding a "savings clause" stating that the prohibition against contact with the media did not apply to communications "concerning a labor dispute or other concerted communications for the purpose of mutual aid or protection protected by the National Labor Relations Act."

General Counsel for the Board brought charges on behalf of Young. In the complaint, the respondent was named Maine Coast Regional Health Facilities, d/b/a Maine Coast Memorial Hospital. Partway through trial before the Administrative Law Judge ("ALJ"), though, the General Counsel requested a revision of the name in the complaint, citing a desire to enforce remedial measures at other EMHS locations. Following an off-the-record discussion between the parties, MCMH consented to revising the name to Maine Coast Regional Health Facilities, d/b/a Maine Coast Memorial Hospital, the sole member of which is Eastern Maine Healthcare Systems.

The ALJ found that MCMH made the decision to fire Young based solely on the letter,¹ and furthermore, that the letter was concerted activity protected by Section 7 of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. § 157, as well as union activity protected by Section 8(a)(3) of the Act, id. § 158(a)(3). Therefore, the ALJ concluded that Young's termination violated Sections 8(a)(1) and 8(a)(3) of the Act, id. § 158(a)(1), (3). The ALJ further held that MCMH's maintenance of the original media policy constituted an independent violation of Section 8(a)(1), and that the newly minted savings clause did not cure its unlawfulness. On review, the Board affirmed the ALJ's decision with one exception. Unlike the ALJ, the Board concluded that the addition of the savings clause did cure the unlawfulness of the original media policy. Accordingly, the Board ordered MCMH to reinstate Young with back pay, cease and desist from violating employees' labor rights, and post notices repudiating the previous media policy at all EMHS facilities where it had been in place. The Board then filed an application in this court for enforcement, and MCMH cross-petitioned for review.

II. Standard of Review

We review a decision of the Board for "mistakes of law, lack of substantial evidence to support factual findings, and arbitrary or capricious reasoning." Boch Imps., Inc. v. NLRB, 826 F.3d 558, 565 (1st Cir. 2016) (quotations and citation omitted). "Where the Board adopts the conclusions and reasoning of the ALJ, we review the ALJ's reasoning as if it were that of the Board." Id. "We may not substitute our judgment for the Board's when the choice is ‘between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.’ " Yesterday's Child., Inc. v. NLRB, 115 F.3d 36, 44 (1st Cir. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ).

Because Congress has delegated to the Board the authority to implement national labor policy, we give considerable deference to the Board's interpretation of the Act so long as it is "rational and consistent with the Act." NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786-87, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990). We use a deferential lens even where the Board revises or reverses its previous interpretations of the Act, as "[t]he responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). However, "[t]he NLRB cannot depart from its own precedent unless it articulates reasons for the departure." NLRB v. Wang Theatre, Inc., 981 F.3d 108, 112 (1st Cir. 2020) (quoting Good Samaritan Med. Ctr. v. NLRB, 858 F.3d 617, 640 (1st Cir. 2017) ).

On matters of fact, the Board's findings are conclusive "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e). A finding of substantial evidence requires "more than a mere scintilla," and instead must be sufficient such that "a reasonable mind might accept [it] as adequate to support a conclusion." McGaw of P.R., Inc. v. NLRB, 135 F.3d 1, 7 (1st Cir. 1997) (quotations and citation omitted). We give "great weight" to the ALJ's credibility determinations. Quality Health Servs. of P.R., Inc. v. NLRB, 873 F.3d 375, 384 (1st Cir. 2017) (quotations and citation omitted).

III. Discussion

1. Whether MCMH Violated the Act

Section 7 of the Act gives employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing,...