Sociedad Espanola De Auxilio v. N.L.R.B.

• Decision Date: 08 July 2005
• Docket Number: No. 04-2071.,04-2071.
• Citation: 414 F.3d 158
• Parties: SOCIEDAD ESPAÑOLA DE AUXILIO MUTUO Y BENEFICIENCIA DE P.R. a/k/a Hospital Español Auxilio Mutuo De Puerto Rico, Inc., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — First Circuit

Page 158

414 F.3d 158

SOCIEDAD ESPAÑOLA DE AUXILIO MUTUO Y BENEFICIENCIA DE P.R. a/k/a Hospital Español Auxilio Mutuo De Puerto Rico, Inc., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 04-2071.

United States Court of Appeals, First Circuit.

Heard May 3, 2005.

Decided July 8, 2005.

Julio I. Lugo Muñoz, with whom Lespier, Muñoz Noya & Rivera was on brief, for petitioner.

William M. Bernstein, Senior Attorney, with whom Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on brief, for respondent.

Before SELYA, Circuit Judge, BALDOCK,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

HOWARD, Circuit Judge.

In this case, we consider a petition for review and cross-petition for enforcement of an order of the National Labor Relations Board. The order charged the petitioner, Sociedad Española de Auxilio Mutuo Y Benficencia de Puerto Rico (Hospital), with four unfair labor practices under the National Labor Relations Act, 29 U.S.C. § 151 et seq., for its dealings with the Unidad Laboral de Enfermeras y Empleados de la Salud (Union). The Hospital challenges the Board's ruling on each alleged violation. We enforce the Board's order.

I. Procedural Background

The Hospital is a tertiary care institution located in San Juan, Puerto Rico. The Union has been the certified representative of the Hospital's registered nurses since 1977. In December 1994, 150 technical employees, including respiratory therapists and radiology technicians, voted to join the Union. The Hospital filed objections to the election, but the Board certified the Union as the representative of these employees in January 1997. Approximately eighteen months later, collective bargaining began with the technical employees.

In December 1999, the NLRB General Counsel filed a complaint against the Hospital alleging that it had committed five unfair labor practices. The complaint alleged that the Hospital had (1) unlawfully enforced a no-solicitation/no-distribution policy against a unionized employee; (2) told employees it was going to lock them out in retaliation for their union activities; (3) sought to encourage employees to decertify the Union; (4) fired an employee for her union activities; and (5) subcontracted union work without providing prior notice to the Union and without affording the Union the opportunity to bargain over the subcontracting decision.

In October 2000, an administrative law judge (ALJ) held a six-day hearing on these allegations. Just over a year later, the ALJ issued an opinion and order finding that the Hospital had committed all five of the alleged unfair labor practices. The Hospital filed exceptions with the Board as to each finding. The Board affirmed the ALJ's ruling except for the finding concerning the Hospital's threat to lock out its employees. Thus, the final Board order found that the Hospital had committed unfair labor practices concerning its termination of an employee, its unlawful enforcement of a no-solicitation policy, its effort to decertify the Union, and its subcontracting of Union work. The Hospital timely petitioned for review in this court, and the General Counsel cross-petitioned for enforcement of the Board's order.

II. Standard of Review

The case turns primarily on whether the facts in the record support the Board's determinations. We are required to accept the Board's factual findings so long as they are "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e); NLRB v. Hosp. San Pablo, Inc., 207 F.3d 67, 70 (1st Cir.2000). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." NLRB v. Beverly Enterprises-Mass., Inc., 174 F.3d 13, 21 (1st Cir.1999). "The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the Board's] finding from being supported by substantial evidence." American Textile Mfrs. v. Donovan, 452 U.S. 490, 523, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981). The ultimate question is "whether on this record it would have been possible for a reasonable jury to reach the Board's conclusion." Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998).

III. Discussion

A. Discharge of Elsa Romero

We begin by considering the Board's finding that the Hospital violated section 8(a)(3) of the Act by firing Elsa Romero, a respiratory therapist, because of her union activities. See 29 U.S.C. § 158(a)(3). The Hospital claims that the Board's decision is not supported by substantial evidence because the proof was overwhelming that the Hospital terminated Romero because of her failure to follow Hospital rules.

"An employer violates section 8(a)(3) by punishing an employee for engaging in pro-union or other protected activities." E.C. Waste, Inc. v. NLRB, 359 F.3d 36, 41 (1st Cir.2004). But an employer is free to terminate a union enthusiast so long as it applies its usual disciplinary standards and procedures. See NLRB v. Wright Line, 662 F.2d 899, 901 (1st Cir.1981). "Whether or not a particular dismissal crosses the line typically depends on the employer's motive." E.C. Waste, 359 F.3d at 41.

The Board and courts have applied a burden-shifting approach in evaluating whether a particular termination violates section 8(a)(3). Under this approach, the General Counsel must first establish a prima facie case by demonstrating (i) the employee's engagement in protected activity, (ii) the employer's knowledge of that activity, (iii) that the employer harbored animus toward unions, and (iv) a causal link between the anti-union animus and the termination. See Hosp. San Pablo, 207 F.3d at 71.

If the General Counsel meets this initial burden, the burden shifts to the employer to prove, by a preponderance of the evidence, that it would have followed the same course of action in the absence of the employee's union activities. See E.C. Waste, 359 F.3d at 42. Importantly, "even if the employer proffers a seemingly plausible explanation, ... the Board does not have to accept it at face value. If the Board supportably finds that the reasons advanced by the employer are either inadequate or pretextual the violation is deemed proven." Id.

The Hospital has not challenged the Board's finding that the General Counsel established the prima facie case so we will focus primarily on the evidence concerning the Hospital's claim that it fired Romero for cause. Romero was hired by the Hospital as a respiratory therapist in 1995. She was an active Union member. She served as shop steward and was a member of the Union's collective bargaining committee. During the course of her employment, her supervisor, Carmen Martinez (Supervisor Martinez), told Romero that she should be less visible in demonstrating her support for the Union by limiting her press exposure as a Union supporter. The ALJ characterized this statement as a "veiled threat" that Romero should curtail her union activities or possibly suffer adverse employment consequences. Nevertheless, in December 1997, Romero was rated as an excellent employee and received a 3.9 out of a possible 4.0 on her year-end evaluation.

Ten months later, Romero was fired. The termination letter, dated October 26, 1998, charged Romero with falsely claiming that she performed respiratory therapies on two patients during the night of October 18, 1998. It also cited two reports of Romero's insubordinate behavior subsequent to the October 18th incident and referenced a previous disciplinary charge against Romero dating to mid-1997.

On October 18th, Romero had reported to work for the 3 p.m. to 11 p.m. shift. There was a shortage of respiratory therapists that evening so the supervisor on duty, Minerva Ruiz, asked Romero to arrange for the coverage of additional patients. Romero coordinated with fellow therapist Janice Martinez (Therapist Martinez) to cover the additional workload. Romero agreed that she would treat the patients in rooms 275-335.

Romero testified that she followed the established practices in performing her duties that evening. For each patient, she read the medical orders, performed the prescribed therapy, and then returned to the nurse's station, where she recorded the therapy in a log called the "Respiratory Therapy Care Notes." Romero testified that among her patients on the night of October 18th were the two patients occupying room 292. Romero stated that she recorded the therapy for one of the patients on the patient's notes from the prior day and, for the other patient, she recorded the therapy on a blank page in the patient's notes instead of on the page reserved for the October 18th treatments. Both Romero and Supervisor Martinez agreed that, ideally, a therapist recorded the therapies chronologically, but that the alternative recording procedures described by Romero were commonplace.

On October 21, 1998, Supervisor Martinez noticed that both Romero and Therapist Martinez claimed to have performed identical services for the patients in room 292. Doubting that both employees had performed the same services on a single shift, Supervisor Martinez questioned Romero and Therapist Martinez about the duplicate entries. Both employees claimed that they had performed the services.

To investigate the issue, Supervisor Martinez went to the notes for the patients in room 292 and observed that Therapist Martinez had recorded that she had performed the services in the spaces reserved for October 18th. Supervisor Martinez did not, however, review the remaining portions of the notes for these patients to see if Romero had recorded the therapy in another spot.

After reviewing the October 18th entries, Supervisor Martinez again confronted Romero, who reiterated that she had performed the services on the...