National Labor Relations v. Mains St Terrace

• Decision Date: 05 May 2000
• Docket Number: Nos. 99-5526,99-5628,s. 99-5526
• Citation: 218 F.3d 531
• Parties: (6th Cir. 2000) National Labor Relations Board, Petitioner/Cross-Respondent, v. Main Street Terrace Care Center, Respondent/Cross-Petitioner. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 531

218 F.3d 531 (6th Cir. 2000)

National Labor Relations Board, Petitioner/Cross-Respondent, v. Main Street Terrace Care Center, Respondent/Cross-Petitioner.

Nos. 99-5526, 99-5628

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 5, 2000

Decided and Filed: July 6, 2000

On Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board; No. 9-CA-35620.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Aileen A. Armstrong, Dep. Asso. Gen. Counsel, John D. Burgoyne, Andrew J. Krafts, Margaret Ann Gaines, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., for Petitioner.

J. Randall Richards, Geoffrey E. Webster, Columbus, Ohio, for Respondent.

Before: BATCHELDER, MOORE, and BEEZER,^* Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

The National Labor Relations Board (hereinafter "Board") petitions for enforcement of its order finding Main Street Terrace Care Center (hereinafter "Main Street") guilty of unfair labor practices, and Main Street cross-petitions for review of the order. The questions presented are whether Main Street violated § 8(a)(1) of the National Labor Relations Act (hereinafter "NLRA"), 29 U.S.C. § 158(a)(1), by promulgating a rule prohibiting employees from discussing wages among themselves, and whether Main Street violated § 8(a)(1) by discharging Mary Craig because she engaged in protected concerted activity. The Board concluded that Main Street violated § 8(a)(1) in both ways. Because the Board's findings are supported by substantial evidence, we ENFORCE the Board's order and DENY Main Street's cross-petition for review.

I. BACKGROUND

Main Street Terrace Care Center¹ operates a nursing home for the elderly in Lancaster, Ohio. This proceeding arises from an unfair labor practice charge filed against Main Street by former employee Mary Catherine Craig.

In June of 1996, Margie Keister, who was then the manager of the dietary department at Main Street, hired Craig as a dietary aide. At that time, after informing Craig of her wage, Keister told Craig "not to tell anyone [how much money she would be making], because it caused hard feelings, and the management did not want it known." Joint Appendix (hereinafter "J.A.") at 131 (M. Craig Test.). Craig's daughter April was also hired as a dietary aide at Main Street in March of 1997. Mary Jeffers, who became the manager of the dietary department in January of 1997, hired April Craig and similarly told her "[t]hat we [employees] were not allowed to discuss our paychecks with anyone." J.A. at 192 (A. Craig Test.).

During 1997, Craig assisted several dietary department employees with wage-related problems. First, shortly after she began working at Main Street, April Craig noticed numerous problems with her paychecks, including Main Street's failure to pay her appropriately for overtime work. April Craig asked her mother to speak to Jeffers and to Tracy Wentz, the payroll clerk, about the problems she was having. Craig did so on several occasions, and the paychecks were sometimes corrected. April Craig accompanied her mother to several of these discussions. On one occasion, when April Craig went to see Jeffers alone, Jeffers told April Craig "that [April] needed to come to [Jeffers] by [her]self." J.A. at 193 (A. Craig Test.).

In the spring of 1997, dietary department employee Joyce Rigby also discussed wage-related problems with Craig. Rigby, who worked as both a cook and dietary aide, had previously been paid two different wages for the two positions but complained that her wage had been changed to a flat rate. Craig, informing Rigby that April Craig still got paid two different wages, offered to talk with Jeffers about Rigby's complaint and subsequently did so. Although Craig's efforts failed, Rigby's pay was eventually changed, and Rigby thanked Craig for her assistance.

Finally, in September of 1997, Jeffers informed Craig and dietary department employee Tracy Jackson that they would be receiving a fifty-cent raise. Jeffers "told Tracy and [Craig], together, not to say anything to the other girls in the kitchen because they were not getting a raise." J.A. at 138 (M. Craig Test.). By November, Craig had received only a twenty-five-cent raise while Jackson had received no raise at all, and the two women had discussions about Main Street's failure to implement the promised raise. On one occasion, when Jeffers asked Craig what was wrong with Jackson, Craig complained to Jeffers that "you promised us a raise and we didn't get it, and Tracy's mad about it." J.A. at 140 (M. Craig Test.). Jeffers responded that it was an oversight and that the raises would be forthcoming.

In October of 1997, Jeffers completed a performance evaluation of Craig. Jeffers gave Craig an "outstanding" rating in the areas of dependability, initiative, self-improvement, and personality, and high "above average" marks in quality of work, quantity of work, and cooperation. Jeffers gave Craig an overall "outstanding" rating and recommended her continued employment. Also in October, Craig was voted "Employee of the Month" by the other employees in the nursing home.

In November, Lisa Cochran, the administrator of Main Street, held a dietary department meeting in her office for the purpose of discussing why the dietary staff was not getting along. Cochran encouraged the employees to speak candidly, and Craig explained that she had not been getting along with a new dietary aide, Bob Monson. Craig complained that Monson was rude to the aides, that he ignored their requests for assistance, that he did not do his job, and that he made snide remarks about her. After Craig made this statement, Cochran asked Craig, "If you can't get along with anybody, why are you here?" J.A. at 145 (M. Craig Test.). Craig then said "end of meeting" and walked out of Cochran's office. J.A. at 145 (M. Craig Test.).

On the evening of December 10, 1997, Craig went to Main Street to retrieve April Craig's cigarette case. Craig overheard Monson telling Jeffers that April Craig had been spreading lies about him and that she had not been doing her job. When Craig heard Jeffers express agreement with Monson, she confronted Jeffers and asked her how she could make such untrue statements. Before leaving, Craig told Jeffers that she thought Jeffers was being unfair. Jeffers disagreed, and said that she was going to fire "whoever was making trouble in the kitchen." J.A. at 157 (M. Craig Test.). Craig told Jeffers that she should not fire her without a good reason, and threatened to file a lawsuit if Jeffers did.

The next day, a nurse came into the kitchen and told Craig that she was upset about having been passed over for a job. Craig told the nurse to file a grievance. Also that day, nursing aide Donna McKenzie was complaining about the way that she was being treated by Main Street. McKenzie said "[w]ell if we had a union," J.A. at 153 (M. Craig Test.); Craig responded by saying, "If we had a union they would not treat any of us this way." J.A. at 153 (M. Craig Test.). Craig testified that she made this statement loud enough for the director of nursing, who was standing nearby, to hear. Moreover, Craig testified that the director of nursing looked up when Craig made this statement.

On Monday, December 15, Cochran fired Craig. Although Craig asked why, Cochran refused to provide an answer, explaining that she was following personnel policies that allowed her to discharge without cause. Cochran later testified that she fired Craig at the request of Jeffers, who told Cochran "[t]hat Mary Craig was -- uh, having -- was not getting along with her co-worker, and that there was -- there were several disruptions within the workplace, such as crying -- uh, loud voice, talking very loudly or shouting -- uh, banging pots and pans around -- uh, and that was disruptive to the workplace and to the home itself, being where the kitchen and the serving area are located." J.A. at 239 (Cochran Test.).

Acting on an unfair labor practice charge filed by Craig after her termination, the Board's General Counsel issued a complaint alleging that Main Street violated § 8(a)(1) of the NLRA by promulgating a rule prohibiting employees from discussing wages among themselves and by discharging Craig for engaging in protected concerted activity. After a hearing held on July 7, 1998, the administrative law judge ("ALJ") concluded that Main Street violated § 8(a)(1) as alleged. On January 29, 1999, the Board affirmed the ALJ's findings and conclusions and adopted the ALJ's recommended order as written. See Main Street Terrace Care Center, 327 N.L.R.B. No. 101, No. 9-CA-35620, 1999 WL 64717, *1 (N.L.R.B. Jan. 29, 1999).

With regard to the first allegation, the ALJ found that Main Street had promulgated a rule prohibiting employees from discussing their wages, as "[t]wo different dietary managers told employees about this rule." Main Street, 1999 WL 64717 at *7. The ALJ then explained that "the mere existence of the rule inhibiting protected conduct, even if not enforced, constitutes an unlawful interference in violation of Section 8(a)(1) of the Act." Id. The ALJ also found that Main Street terminated Craig for engaging in protected concerted activity in violation of § 8(a)(1). First, the ALJ found that Craig engaged in protected concerted activity with regard to April Craig, Rigby, Jackson, the nurse, and McKenzie, and that on December 15, 1997, Main Street was aware of this activity. See id. at *9. The ALJ further found that Craig's termination was motivated by her protected concerted activity, and that Main Street had not demonstrated that it would have terminated Craig even in the absence of the protected conduct. See id. at *9-*10.

On April 19, 1999, the Board filed the instant petition for enforcement of the order, and Main Street subsequently cross-petitioned for review. We have jurisdiction over the Board's...