Opportunity Homes, Inc. v. N.L.R.B.

• Decision Date: 05 February 1997
• Docket Number: 95-5699,Nos. 95-5605,s. 95-5605
• Citation: 101 F.3d 1515
• Parties: 153 L.R.R.M. (BNA) 2961, 132 Lab.Cas. P 11,721 OPPORTUNITY HOMES, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1515

101 F.3d 1515

153 L.R.R.M. (BNA) 2961, 132 Lab.Cas. P 11,721

OPPORTUNITY HOMES, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 95-5605, 95-5699.

United States Court of Appeals, Sixth Circuit.

Submitted May 24, 1996.

Decided Dec. 9, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Feb.

5, 1997. ^*

David H. Shaffer, Roger W. Strassburg, Jr. (briefed), Joondeph & Shaffer, Akron, OH, for Petitioner Cross-Respondent.

Fred L. Cornnell, Jr. (briefed), National Labor Relations Board, Office of the General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Frederick C. Havard (briefed), National Labor Relations Board Appellate Court Branch, Washington, DC, for Respondent Cross-Petitioner.

Before: KRUPANSKY, DAUGHTREY, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KRUPANSKY, J. (pp. 1521-43), delivered a separate dissenting opinion.

MOORE, Circuit Judge.

Opportunity Homes, Inc. ("OH") petitions for review of an order of the National Labor Relations Board (the "NLRB" or "Board") directing OH to cease and desist from certain unfair labor practices and to take affirmative steps to remedy their effects. The Board in turn seeks enforcement of its order. Because substantial evidence supports the Board's factual findings, we deny the petition for review and grant the cross-application for enforcement.

I. Background

Although some of the facts of this case are in dispute, OH's petition does not challenge the following findings. OH provides full-time residential care for twenty-two mentally and physically disabled individuals in Lisbon, Ohio. At the OH facility on Friday, January 24, 1992, an official of the Service Employees International Union and forty OH employees and family members approached Mary Jane Jones, the head administrator. The union official gave Jones a petition signed by forty-one of the forty-four OH employees who were eligible to be part of the union's bargaining unit. The petition announced that the employees had organized a local unit of the union, and the union official demanded that OH recognize it. Jones orally responded that she would recognize the union as the bargaining representative of the employees.

The following Monday, Jones posted a memorandum to all employees at the OH facility. The memorandum professed support for the union but disappointment in the employees for avoiding her after the Friday encounter and for not coming to her with their complaints: "I saw the Great Wall of China rebuilt at Opportunity Homes late Friday afternoon." It also cautioned the employees to choose their union representative carefully, characterizing the Friday encounter as an attempt to intimidate her with numbers that "did tremendous harm to our program." The memorandum then continued:

Because of the dependable crew that we had working for us we were able to eliminate the position of personnel director and put the money towards things such as wages and bonuses. Because we will now be forced to follow the policy manual to the letter, and will also need an administrative union representative, an ad will soon be placed for a full time personnel director. Per your request, anything I have to say to the employees will come via an official memo or other similar form. Legal counsel has advised me to close my open door policy. I will address employee problems, but only through a third person, the union representative. Since the union must approve all benefit plans, the ones planned for this year will all be tabled, including the health insurance plan you were shown a couple of weeks ago. I was able to negotiate a plan that would eliminate all pre-existing conditions, but the time limit is running out.

... I am not scared of your union or threatened by it in any way. If I was, I definitely would not have so graciously recognized your position. I will do what I have to do for these residents. The words strike and walkout do not intimidate me. I, unlike some of you, have made a commitment to the handicapped citizens who employee [sic] me.

Despite this recognition of the union, Jones and OH's board of directors refused repeated requests to bargain with it, until OH finally acknowledged recognition in October 1992.

After the memorandum was posted, the relationship between the employees and management suffered a breakdown; each side blamed the other for it. Within four days of the posting of the memorandum, director of nursing Judy Manning responded to nurse Lorena Howell's reluctance to sign a disciplinary report by shouting that Howell would have signed it without objection prior to the union's arrival, and program director Richard Fithian told activity aide Linda Joy that he was issuing her a written warning for misplacing some documents--rather than simply retrieving the documents himself--because unionization required him to follow strict procedure. In the following months, OH discontinued policies of distributing paychecks early and of providing pay advances, changed and reduced certain employees' work hours, adopted a more strict policy regarding signing informational memoranda, and prohibited employees from wearing pins at a time when employees had begun to wear pro-union paraphernalia. Active union supporter John Tharp saw his job eliminated a few weeks after he challenged a disciplinary report from Fithian; Tharp was forced to work reduced and inconvenient hours at another position, and Fithian did not inform him or any other unit employee when soon thereafter Fithian created and filled a new position that incorporated many of Tharp's former duties. Supervisor Kathryn Fristik repeatedly told employees that they would be fired if they took complaints to anyone but OH management.

After examining hundreds of exhibits and hearing the testimony of over twenty witnesses, an administrative law judge (an "ALJ") found that this and other conduct discussed below constituted unfair labor practices under 29 U.S.C. § 158. He accordingly recommended ordering OH to cease and desist from such practices and to take various affirmative remedial steps. The NLRB adopted the ALJ's findings and recommendations and issued the order, with minor changes. The case is now before us on OH's petition for review and the Board's cross-application for enforcement.

II. Applicable Law

An employer commits an unfair labor practice if it makes an employment decision in order to discourage union membership or to interfere with employees' right to organize. 29 U.S.C. § 158(a)(1), (3). The general counsel of the NLRB has the burden of proving by a preponderance of the evidence that protected union activity was a substantial or motivating factor in the adverse employment decision. NLRB v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 2474, 76 L.Ed.2d 667 (1983); NLRB v. Cook Family Foods, Ltd., 47 F.3d 809, 816 (6th Cir.1995). If he or she carries this burden, the employer may avoid liability by proving by a preponderance of the evidence that it would have taken the adverse action even in the absence of the illicit motivation. Transportation Management, 462 U.S. at 401, 103 S.Ct. at 2474; Cook Family Foods, 47 F.3d at 816.

The Board's legal conclusions are reviewed de novo, but its findings of fact and application of law to fact are subject to the "substantial evidence" standard of review. NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th Cir.1993). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Furthermore, "[d]eference to the Board's factual findings is particularly appropriate where the 'record is fraught with conflicting testimony and essential credibility determinations have been made.' " Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir.) (quoting NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 965 (4th Cir.1985)), cert. denied, 484 U.S. 896, 108 S.Ct. 230, 98 L.Ed.2d 188 (1987).

III. Suspension and Termination of Nursing Staff

The most complicated factual dispute here involves the suspension and subsequent termination of Kathy Byers, Lorena Howell, Gayle Milhoan, and Carol Redmond, all licensed practical nurses who worked at OH. The ALJ found and the Board agreed that the suspensions and terminations were the result of the nurses' active support for the union. OH does not dispute the findings that the nurses were known union activists and that they had exemplary records prior to the unionization effort, but it does challenge other evidentiary findings on which the NLRB's conclusion was based and offers an alternative explanation for the adverse employment actions.

The ALJ found that the unionization attempt prompted management officials, especially Judy Manning, the four nurses' supervisor and the director of nursing, to adopt a hands-off, stonewalling policy towards the nursing staff. Communication ceased and the quality of nursing care accordingly declined. As a result, an annual Ohio Department of Health ("ODH") inspection in April 1992 cited OH for a greater number of regulatory violations than ever before, putting the facility's state certification and funding in jeopardy. OH management seized this opportunity to get rid of the pro-union nursing staff. It blamed the nurses for almost half the violations, suspended the nurses, and fired them after a biased internal investigation.

According to OH, however, it was the nurses, not the management, who used the ODH survey for their own ends. OH asserts that the nurses purposely arranged the violations and directed ODH inspectors to the evidence thereof. Their intent was to force the facility to shut down, because their union liaison allegedly had told them that the state would then appoint a receiver and the current management...