Pruitthealth-Virginia Park, LLC v. Nat'l Labor Relations Bd.

• Decision Date: 01 May 2018
• Docket Number: C/w 16-1399,No. 16-1350,16-1350
• Citation: 888 F.3d 1285
• Parties: PRUITTHEALTH-VIRGINIA PARK, LLC, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

888 F.3d 1285

PRUITTHEALTH-VIRGINIA PARK, LLC, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent

No. 16-1350

C/w 16-1399

United States Court of Appeals, District of Columbia Circuit.

Argued January 10, 2018

Decided May 1, 2018

Jonathan E. Kaplan, Memphis, TN, argued the cause and filed the briefs for petitioner.

Mischa K. Bauermeister, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel at the time the brief was filed, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.

Before: Rogers and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

Edwards, Senior Circuit Judge

This case concerns a union representation election in which Retail, Wholesale, and Department Store Union/UFCW Southeast Council ("the Union") prevailed in its campaign to represent certain employees working for Petitioner PruittHealth-Virginia Park, LLC ("PruittHealth" or "the Company") in its Virginia Park facility ("the Facility") in Atlanta, Georgia. The election took place on August 20, 2015 and resulted in a 35–31 vote in favor of the Union, with two non-determinative challenged ballots. PruittHealth filed objections to the election with the National Labor Relations Board ("Board"), claiming that the Union engaged in misconduct during its election campaign that destroyed the conditions required for a free and fair election. Following a hearing conducted by a Hearing Officer, the Board's Regional Director overruled the objections and certified the Union as the employees' lawful bargaining representative.

PruittHealth refused to bargain with the Union in order to contest the validity of the Regional Director's certification decision. The Union then filed unfair labor practice charges and the Board's General Counsel issued a complaint. A three-member panel of the Board found that PruittHealth's refusal to bargain constituted an unfair labor practice under Section 8(a)(1) and (5) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1), (5), and ordered the Company to bargain with the Union. See Pruitthealth-Virginia Park, LLC , 364 NLRB No. 125, slip op. at 2 (Sept. 22, 2016). PruittHealth now petitions for review, and the Board cross-applies for enforcement of its decision and order.

In its petition for review, PruittHealth contends that the Board erred in overruling its objections to the election, which alleged, in relevant part, that: Union demonstrators repeatedly and intentionally blocked employees' vehicles as they were entering and exiting the Facility's premises; two employees were subjected to objectionable threats of physical violence; and the Union unlawfully photographed employees on PruittHealth's premises during the critical period before the election. PruittHealth also asserts that the Hearing Officer and Regional Director failed to properly consider the cumulative impact of the allegedly objectionable conduct and the closeness of the election results in assessing the Company's objections.

On the record before us, we find no merit in PruittHealth's claims. We hold that the Board's adoption of the Regional Director's decision overruling PruittHealth's blocking and threats-related objections is supported by substantial evidence and consistent with Board precedent. We further hold that we lack jurisdiction over PruittHealth's claim that the Board erred in dismissing its unlawful photographing objection. The Company failed to raise this claim with the Board in the representation proceedings, as required by Section 10(e) of the Act. See 29 U.S.C. § 160(e). We therefore deny the petition for review and grant the Board's cross-application for enforcement.

I. BACKGROUND

PruittHealth operates a nursing home located on Briarcliff Road in Atlanta, Georgia. The Facility has North and South entrances, which are 30 to 50 yards apart and lead to a parking lot in the rear of the Facility. In the summer of 2015, the Union began to organize employees at the Virginia Park Facility. On July 30, 2015, the Union filed a petition with the Board to represent an 84-person bargaining unit of certified nursing assistants, restorative aides, activity assistants, medical record clerks, and service and maintenance employees. In the August 20, 2015 election, the Union prevailed by a vote of 35 to 31. There were two non-determinative challenged ballots.

A week later, PruittHealth filed written objections to the election with the Regional Director, contending that the Union engaged in misconduct that tainted the outcome of the election and warranted setting aside the election results. The Company alleged, inter alia , that Union demonstrators repeatedly and intentionally blocked employees' ingress to and egress from the Facility's premises and hindered employees' access to a public bus stop in front of the Facility. The Company further contended that the Union intimidated and coerced employees by threatening physical violence against individuals who chose not to vote for the Union. The Company also asserted that the Union unlawfully photographed employees on PruittHealth's premises. After an investigation, the Regional Director ordered a hearing on the objections.

A Board Hearing Officer presided over the hearing on PruittHealth's objections. As relevant here, the parties presented evidence that, on August 13 and 19, 2015, the Union conducted demonstrations between approximately 2:30 pm and 4:00 pm. Around 15 to 20 individuals participated in the demonstrations, including a few Union representatives as well as individuals from other labor organizations and community groups. Demonstrators patrolled the area between the Facility's two entrances, carrying pro-Union signs and making pro-Union statements with a bullhorn. PruittHealth called the police each day, but there was no evidence that any arrests were made.

Five witnesses testified for the Company about the alleged blocking incidents. Employee Yolando Thornton testified that, as she was driving into the Facility's premises one day, a demonstrator stepped off a curb and approached her car to hand her a pro-Union flyer. Thornton did not take the flyer, told the man to "move out of the way," and proceeded into the driveway. Joint Appendix ("J.A.") 31. The exchange lasted no more than 60 seconds. Employee Andrew Johnson testified that, on August 18 or 19, as he was driving into PruittHealth's entrance, a demonstrator came to the driver's side of the car, encouraged him to "vote yes [for] the Union," and attempted to hand him a flyer. J.A. 61–62, 68. Johnson came to a stop for a few seconds, gave the man "[a] look," and proceeded into the parking lot. J.A. 62–63. Employee Erica Merriweather testified that as she was driving into the Facility one day, a demonstrator walked to her driver's side window and mentioned something about vacation and holiday pay. She blew her horn, the demonstrator moved out of her way, and she drove into the parking lot. She also testified that, on a different day, demonstrators had the Facility's driveway blocked in, and a demonstrator placed a pro-Union flyer on her car while she was slowly driving into the Facility. Area Vice President Suzanne Gerhardt testified that, on either August 13 or 19, a demonstrator obstructed her view of oncoming traffic as she was exiting the Facility's grounds by car. Lastly, employee Jan Marie Benn testified that, on August 18 or 19, demonstrators "swarm[ed ] around the bus stop" in front of the Facility, chanting "shame on Pruitt" and holding pro-Union signs. J.A. 40. Although she was standing at the bus stop, the bus passed by without stopping, which, in Benn's view, occurred because demonstrators were "swarming around the bus stop." Id.

PruittHealth's counsel elicited testimony from Thornton and Merriweather about the alleged threats. During Thornton's direct examination, as she was explaining her encounters with demonstrators when she was driving into work, PruittHealth's counsel asked her, "Did any union supporters threaten to f--- you up?" to which Thornton replied, "Yes." J.A. 21. On cross-examination, she clarified that the demonstrator said, "If you don't vote yes for the Union, we will f--- you up." J.A. 34. She did not see who made the statement but noted that it came from someone standing in the crowd of demonstrators who were about ten feet away. She testified that the comment made her feel "very uneas[y]" and made her "not want[ ] to come to work," J.A. 22, and that she did not "vote [her] conscience" in the election "because [of] the threats," J.A. 23. Thornton did not testify whether she voted for or against the Union.

Merriweather testified that, as she was clocking into work one day in the week before the election, she observed four coworkers about twenty feet away from her talking in a "little huddle" about "issues that had been going on that week." J.A. 114. She heard them say, "they don't know that the Union ... the Union will f--- people up or get ... will f--- people up or get f---ed up." J.A. 88. She felt the comment was directed at her "because of the stuff that had been going on and saying that week because of the disagreements we were having." J.A. 114. Merriweather submitted a resignation notice after she heard these comments, but she later retracted the resignation. One of the employees Merriweather claimed was standing in the group of employees, Deidre Ward, denied that any such statement was made.

Finally, Merriweather and Gerhardt testified regarding PruittHealth's allegation that demonstrators photographed employees on its premises. Merriweather stated that she observed demonstrators holding their cell phones "toward the building." J.A. 112. She assumed this meant that they were taking pictures. Gerhardt stated that she saw demonstrators holding their cell phones toward the Facility, but did not see anyone take a picture.

After the hearing, the...