Novato Healthcare Ctr. v. Nat'l Labor Relations Bd.

• Decision Date: 05 March 2019
• Docket Number: C/w 17-1232,No. 17-1221,17-1221
• Parties: NOVATO HEALTHCARE CENTER, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

916 F.3d 1095

NOVATO HEALTHCARE CENTER, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent

No. 17-1221

C/w 17-1232

United States Court of Appeals, District of Columbia Circuit.

Argued September 17, 2018

Decided March 5, 2019

Ryan N. Parsons, Milwaukee, WI, argued the cause for petitioner. With him on the briefs was Kamran Mirrafati, Los Angeles, CA.

Rebecca J. Johnston, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Peter B. Robb, General Counsel, John W. Kyle, Deputy General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Jill A. Griffin, Supervisory Attorney.

Before: Garland, Chief Judge, Griffith, Circuit Judge, and Edwards, Senior Circuit Judge.

Garland, Chief Judge:

In 1992, Vincent Gambini taught a master class in cross-examination.¹ Trial counsel for the National Labor Relations Board and the National Union of Healthcare Workers apparently paid attention. In this petition for review, Novato Healthcare Center challenges the Board’s finding that it committed an unfair labor practice by firing four union organizers two days before a union election. As Novato acknowledges, its "entire case turns on whether the testimony" of one of its supervisors "should be credited." Reply Br. 5. But the Board determined that the testimony should not be credited, and trial counsel’s cross-examination of the supervisor provides substantial evidence to support that determination. For this reason, and because the other findings that Novato challenges are also supported by substantial evidence, we deny Novato’s petition for review and grant the Board’s cross-application for enforcement.

I

Novato operates a skilled-nursing facility in California that cares for about 170 patients. On September 16, 2015, the National Union of Healthcare Workers filed a petition with the National Labor Relations Board (NLRB) to represent a unit of Novato employees. Among the employees leading the union-organizing effort were Narvius Metellus, Rolando Bernales, Arlene Waters Brown, and Angel Sabelino. All four attended union meetings, collected show-of-interest signatures, wore pro-union buttons and lanyards, distributed union regalia, and passed out flyers promoting the union.

Novato’s management undertook its own union-opposition campaign. Although Novato supervisors did not generally work night shifts, facility administrator Darron Treude asked supervisors to volunteer for those shifts so they could provide union-opposition materials to employees and answer their questions. CPEhr, an outside consulting group that provides employment law advice, spearheaded the union-opposition campaign on behalf of Novato.

On October 4, 2015, ten days before the October 14-15 representation election, Novato supervisor Gay Rocha approached employee Metellus at approximately 6:30 a.m. Rocha asked Metellus, who was a relatively new employee, how he planned to vote in the upcoming election. When Metellus responded that he planned to vote in favor of the union, Rocha told him that doing so would have implications for his pay and that the union could potentially take a portion of his paycheck. Metellus responded that this would not be a problem for him.

On October 6-7, Metellus, Bernales, Brown, and Sabelino worked the night shift together at Station 4, one of four nursing stations at the Novato facility. During that shift, another employee, Gonzala Rodriguez, whose union views were and remain unknown, worked at Station 1. At Novato, night-shift employees work from 11:00 p.m. to 7:00 or 7:30 a.m., depending on their positions. During a shift, employees are allowed two 10-minute rest breaks. In addition, they are allowed one 30-minute meal break. Employees routinely sleep during these breaks, which they are permitted to take at any time, so long as at least one station member is available. See Novato Healthcare Ctr. , 365 N.L.R.B. No. 137, at 7 (Sept. 29, 2017) ( ALJ Op. ).

Novato supervisor Teresa Gilman also worked the night shift on October 6-7, as part of Novato’s union-opposition campaign. According to Gilman’s testimony at the subsequent unfair labor practices hearing, she arrived at the Novato facility some time after 3:50 a.m. on October 7. After completing a number of tasks, Gilman began making the rounds of the nursing stations, starting with Station 4.

Gilman testified that, when she arrived at Station 4, she saw all four employees sleeping. She said she stood in front of the employees for "several seconds to up to a minute" to see if they would wake up. Id. at 11. According to Gilman, they did not.

Gilman then proceeded to Stations 3 and 1.² She testified that, at Station 1, she saw another employee, Rodriguez, sleeping. According to Gilman, Rodriguez was sitting in a chair outside a patient’s room with her head down on a table.

On Gilman’s second and third rounds through Stations 4, 3, and 1, she said she saw all five employees still asleep in the same positions in which she had last seen them. On her third visit to Station 4, Gilman used her cell phone to take a photograph of two of the four employees, Brown and Sabelino. The photo shows the two with their eyes closed. Although the photograph initially did not have a timestamp, Gilman later produced a version with a timestamp of 4:21 a.m.

Timing, in this case, is (almost) everything. Gilman testified that at least 15 to 20 minutes passed from the time she first arrived at Station 4 and saw the employees sleeping, to the time she took the photograph of the two sleeping employees. If true, this meant that at least two of the Station 4 employees had been sleeping considerably longer than their permitted 10-minute breaks.

Gilman then went on to revisit Station 1. She noticed that Rodriguez was still sleeping and informed the charge nurse, who woke her up. Gilman estimated that Rodriguez had been asleep for at least 15 to 20 minutes as well. By the time Gilman returned to Station 4 for a fourth time, all four employees there were awake.

On the morning of October 7, Gilman sent administrator Treude the photograph and soon thereafter informed him that the five employees had been asleep for 15 to 20 minutes. Treude suspended all five and initiated an investigation. Novato’s outside counsel, Richard Albert, as well as its outside consulting group, CPEhr, provided input regarding disciplinary options. Specifically, in an email to Treude and CPEhr, Albert recommended that Treude terminate all five employees. Although Albert recognized that Rodriguez was "a bit of a different story" because her "Charge Nurse appears to have tolerated her sleeping," he still recommended her termination: "[G]iving her lesser discipline, in this situation, sends the wrong message to the NLRB or a judge looking at this. It is possible that [the] NLRB or judge could view her situation as being less serious than the others, but I would rather have you take that risk, than the risk that letting her remain employed somehow dilutes our arguments with the other 4." Email from Albert to Treude, et al. (Oct. 10, 2015) (J.A. 529).

On October 12, two days before the scheduled election, Treude fired all five employees for sleeping on duty. On October 14 and 15, the NLRB conducted the election, which the union won.

Thereafter, the union charged Novato with committing unfair labor practices, and the NLRB’s General Counsel issued a complaint. Gilman testified as recounted above. The two Station 4 employees captured in the photograph, Brown and Sabelino, acknowledged that they had slept, but said they did so only during their permitted 10-minute breaks. Bernales testified that, although he had rested during his allowed meal break, he did not sleep after returning to Station 4 at 4:00 a.m. Metellus testified that he did not sleep at all during that shift. Rodriguez, the Station 1 employee, did not testify.

Following a multi-day hearing, the ALJ found that Novato violated the National Labor Relations Act (NLRA) by suspending and firing the five employees, and also violated the Act when Rocha questioned Metellus about how he planned to vote. 365 N.L.R.B. No. 137, at 18. The Board affirmed the ALJ’s rulings, findings, credibility determinations, and conclusions, with minor modifications. Id. at 1.

Novato has now filed a petition for review in this court, and the NLRB has filed a cross-application for enforcement of its order. Under the applicable standard of review, we must uphold the judgment of the Board unless its findings are unsupported by substantial evidence, or it acted arbitrarily or otherwise erred in applying established law to the facts of the case. Spurlino Materials, LLC v. NLRB , 805 F.3d 1131, 1136 (D.C. Cir. 2015) ; Bally’s Park Place, Inc. v. NLRB , 646 F.3d 929, 935 (D.C. Cir. 2011) ; see 29 U.S.C. § 160(f) (providing that the Board’s findings of fact are "conclusive" if "supported by substantial evidence on the record considered as a whole").

II

We begin with Novato’s challenge to the Board’s finding that Novato violated Section 8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1), (3), by suspending and then firing the four employees at Station 4. It is on this issue that the information elicited by cross-examination is important.

An employer violates Section 8(a)(1) and (3) by suspending or discharging an employee for engaging in protected union activity. NLRB v. Transp. Mgmt. Corp. , 462 U.S. 393, 397-98, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) ; Metro. Edison Co. v. NLRB , 460 U.S. 693, 698 n.4, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983) ; Tasty Baking Co. v. NLRB , 254 F.3d 114, 125 (D.C. Cir. 2001).³ The Board employs the judicially approved Wright Line test when reviewing a claim that an employer discharged (or took other disciplinary action against) an employee for protected conduct. See Wright Line , 251 N.L.R.B. 1083, 1089 (1980) ; see also Transp. Mgmt. Corp. , 462 U.S. at 401-03, 103 S.Ct. 2469 (approving the Wright Line test); Bally’s Park Place , 646 F.3d at 935. "Under that...