Ntnl Labor Relations v. Regional Home Care Servicesm

Decision Date07 December 2000
Docket NumberNo. 00-1268,00-1558,00-1268
Citation237 F.3d 62
Parties(1st Cir. 2001) NATIONAL LABOR RELATIONS BOARD, Petitioner/Respondent, Cross-Petitioner v. REGIONAL HOME CARE SERVICES, INC., D/B/A/NORTH ATLANTIC MEDICAL SERVICES, Respondent/Petitioner, Cross-Respondent. Heard
CourtU.S. Court of Appeals — First Circuit

APPLICATION FOR ENFORCEMENT, PETITION FOR REVIEW, AND CROSS-APPLICATION FOR ENFORCEMENT OF ORDERS OF THE NATIONAL LABOR RELATIONS BOARD

Richard A. Cohen, Senior Attorney, National Labor Relations Board, with whom Leonard R. Page, General Counsel, National Labor Relations Board, and Aileen A. Armstrong, Deputy ssociate General Counsel, National Labor Relations Board, were on brief, for Petitioner.

Kevin M. Keating for Respondent.

Before Stahl, Lynch, and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

In 1995 the Teamsters Union began an organizing campaign at North Atlantic Medical Services, a supplier of medical equipment. North Atlantic fought fiercely and also unfairly and now has unfair labor practice findings against it, as well as a bargaining order. A supervisor, though, had pro-union sympathies which he openly expressed. The employees -- that is, a majority of them -- both signed union representation cards and voted for unionization in an election. The employer has refused to bargain with the Union and twice has been ordered by the National Labor Relations Board to do so. The Board now petitions for enforcement of its various orders. North Atlantic also petitions for review, saying that both the election and the authorization cards, and thus the consequent Board orders to bargain, must be set aside because the supervisor's conduct biased the outcome. North Atlantic has not challenged the finding of unfair labor practices on its part. The case involves review of the Board's determination that the pro-union activities of a supervisor were not sufficient to deprive employees of their right to a free and uncoerced choice, and thus to set aside the two bases for the bargaining order.

I.

We summarize the Administrative Law Judge's undisputed findings of fact, adopted by the Board.

North Atlantic Medical Services supplies medical equipment. That equipment is delivered by field service technicians, or drivers. In April 1995, when union organizing efforts began, North Atlantic employed approximately eleven drivers and mechanics at its Leominster facility.

At the request of driver Marco Nagle, union organizer Al Stearns met on April 6, 1995, with Nagle and four other North Atlantic employees who were interested in unionization.1 Field Service Manager Steven Custer also attended the meeting. Custer said he supported unionization but told the others that North Atlantic's president, Carbot Carabott, was adamantly opposed to unionization and had once threatened to "lock the [ ] doors" if the employees tried to organize a union. Custer warned that Carabott would "do everything in his power to make it miserable for everyone" if they tried to organize. All six attendees, including Custer, signed union authorization cards at that meeting. Custer did not himself pass out cards or ask employees to sign the cards, nor did he promise rewards if they supported unionization or punishment if they did not.

Shortly after the meeting, Nagle obtained signed cards from three more employees. When Stearns again met with employees on April 13, eight of the eleven unit members had signed cards. Stearns filed a representation petition with the Board. The Board then sent a copy to North Atlantic on April 17. The parties agreed to an election set for June 1, 1995.

In the weeks before the election, North Atlantic launched a campaign to defeat unionization. It undertook a series of personnel actions designed to undermine support for unionization in the bargaining unit. Three days after receiving the petition, on April 20, North Atlantic removed Gary Roy, a union supporter who had signed an authorization card on April 6, from a light duty assignment and placed him on full worker's compensation pending further investigation of his condition. North Atlantic fired Roy a month later on May 22. Also on May 22, North Atlantic laid off another driver in the unit, Marc Kiroac, for "lack of work," although Kiroac had worked over 60 hours in each of the previous two weeks, and was recalled one week after the election. And on April 21, North Atlantic transferred a salesman, Michael McDermott, a union opponent, back into the bargaining unit as a driver in order to dilute support for unionization. McDermott did not want to transfer and told other drivers that he was eager for the election to be over so he could go back to his sales job.

President Carabott held two mandatory employee meetings to discuss his opposition to unionization. At the meetings, Carabott questioned employees directly about their reasons for supporting unionization, and told them they could work down the street if they wanted a union. He also said that he would get out of the business when it stopped being "fun," and spoke about a friend's company that went out of business after employees chose unionization. This was an implied threat that North Atlantic would go out of business if the drivers won representation rights. Calling the unionization effort a "battle in a war," Carabott said that he would not lose this war. He warned that unionization would be futile because there would be no extra benefits even if the employees chose union representation, and that although a union could offer anything, he had the final say as to what would be given. Carabott also announced a new "open door policy" and solicited grievances from employees, and implied that he would suspend that policy if employees unionized.

North Atlantic also distributed two anti-union memoranda to employees shortly before the June 1 election. In the second memo, which accompanied paychecks, Carabott wrote that unionization could "endanger the financial stability of this company and also the livelihood that enables you to provide for your family" because customers would be unlikely to continue to do business with a unionized company due to the threat of strikes. Carabott also warned that a strike "means loss of business and loss of jobs."

Meanwhile, on April 20, three days after it received the representation petition, North Atlantic fired Field Service Manager Custer, purportedly for failing to competently perform his responsibilities as service manager. The Union filed a discriminatory discharge charge on Custer's behalf on May 22.2 The Union argued that Custer was an employee, fired in retaliation for his support of unionization. Custer attended four more union meetings before the June 1 election, but did not pressure employees to support unionization. He asked some employees in general terms whether they planned to vote for the Union, and told them that they should only do so if they were "110 percent sure" because President Carabott would fiercely resist unionization. Custer also voted in the June 1 election.3

After the election, the Board held a hearing to resolve challenges to several of the ballots. The Board rejected North Atlantic's challenge to the Union's majority status based on Custer's pro-union activities. Further, the Board found that North Atlantic committed numerous unfair labor practices, including firing several employees in retaliation for their union support, making unilateral changes to evaluation and compensation policies, threatening employees with job loss, and telling employees that unionization was futile because having a union would not result in improved benefits.

In light of North Atlantic's unfair labor practices, the Board concluded that a remedial bargaining order was warranted, requiring North Atlantic to recognize and bargain with the Union.

The Board ordered North Atlantic to cease and desist from the unfair labor practices and from interfering with or coercing employees in the exercise of their rights under the Act. North Atlantic was also required to offer reinstatement to the fired employees and to compensate all employees for losses caused by its unfair labor practices. Finally, the Board ruled that the remaining valid ballots were to be counted and, if the Union received a majority of the valid ballots, directed the Regional Director to certify the Union as the employees' exclusive bargaining representative.4 The Board ordered the Regional Director to set aside the election if the Union did not receive a majority of the ballots cast.

The Union was certified after a revised tally revealed that the Union indeed had won the election, by a count of eight to two. But North Atlantic again refused the Union's request for recognition and bargaining, claiming that the Union had been improperly certified because Custer's pro-union activities tainted the election, requiring it to be set aside. Acting on a Union complaint, the Board's General Counsel issued an unfair labor practice complaint and the Board granted its motion for summary judgment against North Atlantic. The Board found that North Atlantic had not produced any new evidence or special circumstances requiring the Board to alter its earlier decision that Custer's activities did not taint the representation proceedings. The Board concluded that North Atlantic's refusal to bargain with the Union violated the Act and again ordered North Atlantic to bargain with the Union and to cease and desist from interfering with, restraining, or coercing employees in the exercise of their rights under the Act.

In its petition for enforcement, the Board seeks summary affirmance of its findings that North Atlantic committed several unfair labor practices, which North Atlantic does not challenge on appeal. Further, the Board seeks affirmance of its finding that the Union achieved a valid card majority which, combined with the numerous unfair labor practices, led the Board to...

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