Ridgewood Health Care Ctr., Inc. v. Nat'l Labor Relations Bd.
| Decision Date | 13 August 2021 |
| Docket Number | No. 19-11615,19-11615 |
| Citation | 8 F.4th 1263 |
| Parties | RIDGEWOOD HEALTH CARE CENTER, INC., Ridgewood Health Services, Inc., Petitioners-Cross Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLA, Intervenor. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ronald W. Flowers, Jr., Eddie Travis Ramey, Matthew Taylor Scully, Burr & Forman, LLP, BIRMINGHAM, AL, for Petitioners-Cross Respondents.
David Habenstreit, Elizabeth Ann Heaney, Barbara Ann Sheehy, National Labor Relations Board, Division of Legal Counsel, WASHINGTON, DC, John D. Doyle, Jr., Jeffrey D. Williams, NLRB, General Counsel, ATLANTA, GA, for Respondent-Cross Petitioner.
Richard Paul Rouco, Quinn Connor Weaver Davies & Rouco, LLP, BIRMINGHAM, AL, Keren Wheeler, United Steelworkers, Legal Department, PITTSBURGH, PA, for Intervenor.
Before NEWSOM and BRANCH, Circuit Judges, and BAKER,* District Judge.
Ridgewood Health Care Center, Inc. and Ridgewood Services, Inc. (collectively, "Ridgewood") petition for review of an order of the National Labor Relations Board ("Board"), which found that Ridgewood committed several unfair labor practices, in violation of the National Labor Relations Act, 29 U.S.C. § 151 et seq. ("Act"). Specifically, the Board concluded that Ridgewood violated the Act by: (1) coercively interrogating employees about union membership during job interviews, (2) notifying employees that they were not represented by a predecessor union, (3) threatening to fire an employee if she engaged in union activity, (4) using a discriminatory hiring scheme to avoid hiring a majority of the predecessor company's employees to evade bargaining obligations with the union, (5) refusing to recognize and bargain with the union, and (6) refusing the union's requests for information for purposes of bargaining. On petition for review, Ridgewood challenges each of these conclusions except the determination that one of its employees threatened to fire an employee for engaging in union activity. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union ("Union") intervenes in support of the order, and the NLRB, through its General Counsel,1 petitions for enforcement of the order. After careful consideration, and with the benefit of oral argument, we grant Ridgewood's petition in full and enforce the Board's order in part.
Since 1977, Ridgewood has owned a nursing home facility in Jasper, Alabama.2 Beginning in 2002, Ridgewood leased its facility to Preferred Health Holdings II, LLC ("Preferred"). Preferred handled all operations at the Ridgewood facility, including hiring, managing staff, and negotiating with Ridgewood's union. Ridgewood's only involvement was collecting lease payments from Preferred.
In 2008, Joette Kelley Brown purchased Ridgewood and Ridgeview (another nursing home facility in Jasper, Alabama).3 At the time Brown purchased Ridgewood, the Union was the exclusive bargaining representative of Preferred employees.
In 2012, Preferred sought to negotiate reduced lease payments, but Brown and Ridgewood could not agree to a reduction. The parties’ relationship eventually deteriorated, and they agreed that Preferred's lease would terminate early on September 30, 2013. As a result, Preferred employees were notified on July 29, 2013, that their positions would be terminated at the end of September 2013.
Brown then formed Ridgewood Services in July 2013 to assume the operation and control of the Ridgewood facility beginning on October 1, 2013.
Because Brown wished to recruit Preferred employees to staff Ridgewood Services, Brown met with Preferred employees on several occasions that summer. In July, Brown met some of the Preferred employees and encouraged them to apply to Ridgewood Services. Brown explained to the Preferred employees that while all Preferred employees would have to "go through the application process, ... [Brown] was expecting to rehire potentially everybody" or "99.9 percent" of Preferred employees. When asked whether Preferred employees who had been terminated from Ridgeview would be eligible to apply to Ridgewood Services, Brown stated that they would be considered. And in response to a question about the Union, Brown stated that she would have to recognize it and noted the Ridgeview facility had a "good relationship" with its union. At another meeting in August, however, Brown said that Ridgewood would not need a union because she and the Ridgeview union worked well together and ironed out their differences informally. Brown also introduced a new job classification at Ridgewood Services: "helping hands." Brown utilized "helping hands" at the Ridgeview facility for about seven to eight years. "Helping hands" performed most of the same functions as certified nursing assistants ("CNA") but lacked formal certification. Finally, at a smaller meeting with four or five Preferred employees, Brown represented that employees who had been fired from Ridgewood would be eligible to apply to Ridgewood Services.
In mid-August 2013, Ridgewood Services offered Preferred employees an opportunity to apply for positions at Ridgewood during an exclusive three-week period that would end on August 30, 2013. Preferred posted a notice to its employees about the exclusive application period, and Ridgewood Services representatives met with Preferred employees to explain the application process. Ridgewood Services extended the application period by approximately one week (into early September 2013) before accepting applications from non-Preferred employees.
During a "very busy" and "chaotic" hiring process, 65 out of 83 Preferred employees applied and were interviewed. Typically, interviews were conducted by a group of two or three senior officials that included Brown, Stewart (Ridgewood's Vice President and Secretary), Vicky Burrell (Ridgeview's director of nursing), Kara Holland (Ridgeview's administrator), and SuLeigh Warren (Ridgeview's human resources director). Generally, applicants were asked about their experience working for Preferred and whether they had suggestions for improvement. Four applicants were asked about their wages, benefits, and paycheck deductions (which might have included deductions for Union dues). And four applicants—Stephanie Eaton, Pam McPherson, Paul Borden, and Audrie Borden—were asked whether they belonged to the Union. Two additional applicants—Crystal Wilbert and Becky Ramos—volunteered during their interviews that they belonged to the Union.
Brown offered employment to 53 of the 64 Preferred applicants.4 Two Preferred employees declined the offer. Rejection letters sent to Preferred applicants did not state a reason for the adverse decision. None of the interviewees who were questioned about Union membership were refused employment. Relevant here, Brown did not offer employment to four Preferred employees: Betty Davis, Gina Eads, Connie Sickles, and Vegas Wilson. According to Brown, Davis, Eads, and Sickles were not eligible to be hired at Ridgewood because they had been fired at Ridgeview.5 At Ridgeview, Brown had a policy of not rehiring employees who had been terminated from that facility, and Brown claimed to have implemented that same rule during the Ridgewood Services hiring process. Eads was aware of Ridgeview's policy and, during her interview with Burrell and Holland, asked whether the "no-rehire" policy would be applied to her. Burrell and Holland assured Eads that she "had nothing to worry about."6 Wilson was not hired because, after her interview, Ridgewood Service's director of nursing, Sheila Cooper, told Brown that Wilson had been fired from another nursing facility after an altercation with a coworker.
After the exclusive application period for Preferred employees ended in early September, Ridgewood Services received 111 applications from non-Preferred employees. Ridgewood Services hired 56 of those applicants.
Of the 107 total employees hired by Ridgewood, 101 accepted their offers and reported for work on October 1, 2013—the day Ridgewood assumed operations from Preferred. And of the 101 employees who reported for work, 49 were former Preferred employees,7 and 52 had never worked for Preferred.8 In short, on the first day of operations, former Preferred employees did not comprise a majority of the new workforce at Ridgewood.
As the hiring process unfolded, Ridgewood and the Union disputed whether Ridgewood was required to honor the collective bargaining agreement ("CBA") between Preferred and the Union. On July 15, Ridgewood's attorney told the Union that Ridgewood "reject[ed] the current [CBA]" but "nonetheless desire[d] to engage in bargaining" to negotiate a new CBA.
On September 10, the Union responded that "the CBA [between Preferred and the Union] remains in full effect, and that any attempt to reject the CBA by Ridgewood or its alter ego [Ridgewood Services] ... is both unlawful and ineffective." It also formally requested that Ridgewood bargain with the Union. Three days later, the Union sought from Ridgewood "as part of its obligation to bargain under the National Labor Relations Act ... a full account of [Ridgewood Services's] plans" regarding the upcoming transition. The Union requested specific information, including: job titles and classifications of affected Preferred employees, the benefits Ridgewood Services expected to provide affected Preferred employees, hiring standards, the number of employees to be hired, any changes related to terms and conditions of employment, and other documents pertaining to the relationship between Ridgewood and Ridgewood Services.
On September 23, Ridgewood attempted to "clear up" what it perceived as...
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