Sinai Hosp. of Balt., Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 10 May 2022
• Docket Number: 21-1642, No. 21-1683
• Citation: 33 F.4th 715
• Parties: SINAI HOSPITAL OF BALTIMORE, INC., d/b/a VSP, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and 1199 SEIU United Healthcare Workers East, Intervenor. National Labor Relations Board, Petitioner, v. Sinai Hospital of Baltimore, Inc., d/b/a VSP, Respondent. and 1199 SEIU United Healthcare Workers East, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

33 F.4th 715

SINAI HOSPITAL OF BALTIMORE, INC., d/b/a VSP, Petitioner,

v.NATIONAL LABOR RELATIONS BOARD, Respondent,and1199 SEIU United Healthcare Workers East, Intervenor.

National Labor Relations Board, Petitioner,

v.Sinai Hospital of Baltimore, Inc., d/b/a VSP, Respondent.and1199 SEIU United Healthcare Workers East, Intervenor.

No. 21-1642

No. 21-1683

United States Court of Appeals, Fourth Circuit.

Argued: March 10, 2022

Decided: May 10, 2022

ARGUED: J. Eric Paltell, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Petitioner/Cross-Respondent. Eric C. Weitz, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Ashley Evangeline Macaysa, ABATO, RUBENSTEIN & ABATO, P.A., Baltimore, Maryland, for Intervenor. ON BRIEF: Jordan F. Dunham, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Petitioner/Cross-Respondent. Jennifer Abruzzo, General Counsel, Peter Sung Ohr, Deputy General Counsel, Ruth E. Burdick, Deputy Associate General Counsel, David Habenstreit, Assistant General Counsel, Kira Dellinger Vol, Supervisory Attorney, Jared D. Cantor, Senior Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. James R. Rosenberg, ABATO, RUBENSTEIN & ABATO, P.A., Baltimore, Maryland, for Intervenor.

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Petition for review denied, and cross-application for enforcement granted, by published opinion. Judge King wrote the opinion, in which Judge Niemeyer and Judge Motz joined. Judge Niemeyer wrote a separate concurring opinion.

KING, Circuit Judge:

Sinai Hospital of Baltimore, Inc.'s Vocational Services Program ("VSP") seeks judicial review of a decision and order of the National Labor Relations Board (the "Board") finding that VSP engaged in unfair labor practices, in contravention of § 8(a)(1) and (5) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a)(1), (5), by refusing to bargain with a Board-certified bargaining representative, 1199SEIU United Healthcare Workers East (the "Union"). See Sinai Hosp. of Balt., Inc. d/b/a VSP , 370 NLRB 129 (2021) (the "Bargaining Order"). Specifically, VSP contests the Board's underlying determination that certain disabled janitorial workers engaged by VSP are "employees" within the meaning of the Act. The Board cross-petitions for enforcement of the Bargaining Order. Because substantial evidence supports the Board's employee-status determination, we deny VSP's petition for judicial review and hereby grant enforcement of the Bargaining Order.

I.

A.

VSP is a department of Sinai Hospital, an acute care facility in Baltimore, Maryland, owned by LifeBridge Health, Inc. VSP encompasses a vocational and career-training program as well as a separate contracts and employment program, both of which are intended to assist individuals facing barriers to employment with preparation for competitive employment opportunities. Disabled individuals may be referred to VSP's vocational program — which offers career assessments, job skills training, and internships — by any of a variety of nonprofit or government organizations. Following their graduation from the vocational program, disabled individuals become eligible for job placements through VSP's employment program. Such placements may be with Sinai Hospital itself; with an outside, private employer; or at a VSP contract site. Nondisabled individuals may also approach VSP seeking enrollment in the employment program, but are not eligible for participation in the vocational program.

As part of its employment program, VSP has contracted with the Social Security Administration (the "SSA") since at least 1987 to provide janitorial staffing at SSA facilities. VSP's contract with the SSA is governed by the federal AbilityOne program, a creation of the Javits-Wagner-O'Day Act (the "Javits Act") designed to employ disabled persons in providing commodities and services to the federal government. The terms of the Javits Act require, inter alia, that at least 75% of the janitors that VSP employs at its contract sites be "severely disabled." See 41 U.S.C. § 8501(6). VSP directly employs the disabled janitors involved in these proceedings at an SSA facility located in Maryland's Baltimore County. As of November 2019, VSP employed 44 janitors at that facility. Thirty-five of those VSP janitors were documented by annual employment evaluations as suffering from "severe" physical or mental disabilities

, as defined by the Javits Act. The other nine VSP janitors working at the facility did not qualify as severely disabled. See A.R. 26-27, 270-71.¹

The record reflects the following facts pertaining to the employment relationship between VSP and the janitors working at the Baltimore County SSA facility. All janitors at the facility — regardless of disability status — have substantially the same terms and conditions of employment, and the disabled janitors work alongside nondisabled janitors during standard eight-hour shifts. VSP maintains a progressive discipline system that, by its terms, applies equally to all janitors, although disabled janitors may receive modified job duties or counseling in lieu of formal discipline when they face difficulties in completing their assigned tasks. All VSP janitors can be — and, with some frequency, are — discharged for inadequate work performance, taking unauthorized breaks, failing to properly store supplies, and the like, even when a janitor's disability precipitates their performance issues. VSP supplies certain counseling and rehabilitative services to both disabled and nondisabled janitors, principally through a case manager named Veronica White, but does not employ any full-time counseling personnel at the SSA facility. Janitors tend to remain in their positions at the facility for several years, and VSP does not maintain a formal job-placement program. Between 2014 and 2019, VSP discharged 19 disabled janitors, while only seven left the SSA facility for outside employment during that period.

B.

On July 3, 2019, the Union filed a petition with the Board seeking to represent the VSP janitors working at the SSA facility. The Union petitioned to represent a bargaining unit consisting of "[a]ll full time regular and part time janitors and housekeepers employed by [VSP] at the [SSA facility]," without regard for disability status. See A.R. 257-58. VSP contested the Board's jurisdiction over the proposed unit of janitors, asserting that the Union's petition should be dismissed because the disabled janitors at the SSA facility have a "primarily rehabilitative" relationship with VSP, such that — under the standard articulated by the Board in its decision in Brevard Achievement Center, Inc. , 342 NLRB 982 (2004) — they are not "employees" as contemplated by § 2(3) of the Act.²

The Board thereafter conducted two representation hearings in July and September 2019. The Board received testimony and exhibits from four VSP witnesses, including case manager White, as well as from two janitors employed at the SSA facility — one disabled, and one nondisabled. VSP and the Union also filed formal briefs with the Board following each hearing.

On November 29, 2019, the Acting Regional Director for the Board's Region 5 issued a Decision and Direction of Election resolving that the disabled janitors engaged by VSP are in fact statutory "employees." See A.R. 819-45. After assessing the factors set forth in the Board's Brevard decision, the Decision and Direction of Election concluded that VSP had failed to satisfy its burden of demonstrating a "primarily rehabilitative" employment relationship, and that VSP's relationship with the disabled janitors was instead more appropriately classified as "typically industrial." Id. at 820-21 (citing Brevard , 342 NLRB at 984 ). The Acting Regional Director acknowledged that certain evidence at the representation hearings suggested a "rehabilitative" relationship, but found that, on balance, most of the evidence was illustrative of a traditional economic relationship.

Accordingly, the Acting Regional Director ruled that both the disabled and nondisabled janitors working at the SSA facility are "employees" as contemplated by the Act and ordered a Board-supervised secret ballot election. See A.R. 839-41. The Union prevailed in that election by a vote of 28 to 13 and, on December 30, 2019, the Acting Regional Director certified the Union as the exclusive collective bargaining representative of the VSP janitors. VSP sought review of the Decision and Direction of Election's employee-status determination, but a three-member panel of the Board denied that request on May 27, 2020, citing a lack of substantial issues warranting review.

C.

Notwithstanding the Union's successful election and certification, VSP refused to recognize it as the janitors' bargaining representative or to engage in the bargaining process. The Union thus filed an unfair labor practice charge with the Board on September 11, 2020, and the Board's General Counsel thereafter issued a complaint alleging that VSP had violated § 8(a)(1) and (5) of the Act by refusing to bargain in good faith with the Union. See A.R. 933-39.³ The General Counsel moved the Board for summary judgment and, in response, VSP again raised its contention that the disabled janitors are not statutory "employees." VSP did not dispute its refusal to recognize or bargain with the Union, but simply maintained that it had no duty in law to bargain because the Board's underlying certification of the Union was fatally erroneous.

On May 25, 2021, a three-member panel of the Board granted the General Counsel's motion for summary judgment, ruling in its Bargaining Order that VSP's refusal to bargain with the Union constituted an unfair labor practice under the Act. The Bargaining Order directed VSP to recognize the Union as the certified representative of the janitors working at the SSA facility; to engage in the bargaining process at the request of the Union; to refrain from...