St. Agnes Medical Center v. N.L.R.B.

Citation871 F.2d 137
Decision Date28 March 1989
Docket NumberAFL-CIO,No. 88-1020,88-1020
Parties130 L.R.R.M. (BNA) 3022, 276 U.S.App.D.C. 340, 111 Lab.Cas. P 11,053 ST. AGNES MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, District 1199C, National Union of Hospital and Health Care Employees,, et al., Intervenors.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Jacob P. Hart, Philadelphia, Pa., with whom Thomas Earl Patton, and Frank C. Sabatino Washington, D.C., were on the brief, for petitioner.

Joseph H. Bornong, Attorney, N.L.R.B. ("NLRB"), with whom Aileen A. Armstrong, Deputy Associate Gen. Counsel, and John D. Burgoyne, Asst. Gen. Counsel, N.L.R.B., were on the brief, for respondent. Paul J. Spielberg, Atty., NLRB, Washington, D.C., also entered an appearance for respondent.

Miriam L. Gafni, Philadelphia, Pa., was on the brief for intervenors.

Before STARR and BUCKLEY, Circuit Judges, and THOMAS PENFIELD JACKSON, * U.S. District Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

St. Agnes Medical Center petitions for review of an order of the National Labor Relations Board setting aside a decertification election and requiring St. Agnes to bargain with the union that had represented its employees prior to the election. While we decline to overturn the Board's order setting aside the election, we conclude that certain of its findings of unfair labor practices are not supported by substantial evidence on the record as a whole. We also conclude that the Board failed to provide adequate justification for its bargaining order.

I. BACKGROUND
A. Factual Background

St. Agnes Medical Center ("St. Agnes" or "Hospital") is a nonprofit hospital located in Philadelphia. In 1982, it had a bargaining unit consisting of approximately 270 employees. Of those, about twenty were maintenance workers affiliated with Local 473 of the National Brotherhood of Firemen and Oilers ("Local 473"). The remainder were service employees belonging to District 1199C of the National Union of Hospital and Health Care Employees ("District 1199C"). In 1982, Local 473 and District 1199C (collectively, the "Union") became joint representatives of the unit and entered into a two-year collective bargaining agreement ("Agreement") with the Hospital that would expire on June 30, 1984.

In March 1984, a petition signed by 110 to 120 employees (forty to forty-five percent of the bargaining unit) was filed to decertify the Union. Two months later, the employees voted in favor of decertification by a margin of 132 to 126. Thereafter, the Hospital refused to negotiate a new collective bargaining agreement with the Union.

The Union filed a series of objections and unfair labor practice charges that were presented at three days of hearings before an administrative law judge ("ALJ") of the National Labor Relations Board ("Board" or "NLRB"). The ALJ found that the Hospital had committed a variety of unfair labor practices ("ULP's") in violation of sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act ("Act"), 29 U.S.C. Secs. 158(a)(1), (3) & (5) (1982). In essence, section 8(a)(1) forbids an employer from interfering with its employees' exercise of their right to organize, and be represented by, a union of their choice; section 8(a)(3) prohibits discrimination against employees as a result of their union membership or sympathies; and section 8(a)(5) requires that an employer bargain in good faith with its employees' representatives.

The ALJ recommended, inter alia, that the decertification election be vacated and the Hospital ordered to bargain with the Union. In a Decision and Order to which the ALJ's opinion ("ALJ Decision") was appended, the Board affirmed the ALJ and adopted his recommendations in nearly all respects. St. Agnes Medical Center, 287 N.L.R.B. No. 26 (Dec. 16, 1987) ("Decision and Order").

B. The ALJ's ULP Findings

The ALJ's ULP findings may be divided into two groups: those committed prior to the expiration of the Agreement and those committed thereafter.

1. Pre-expiration ULP's

a. Employee Carrie Porter was a Union delegate and steward. After she discussed the decertification petition with other employees and a union organizer, Hospital officials changed the time at which Porter could take her morning break and eat lunch to times when other employees would not be in the cafeteria. Her supervisor informed her that she was being watched, followed her to the bathroom for at least one day, and otherwise restricted Porter to her department until after the election. The ALJ concluded that the Hospital's actions violated sections 8(a)(1) and 8(a)(3). ALJ Decision at 25-26.

b. The ALJ found that St. Agnes had also violated sections 8(a)(1) and 8(a)(3) when its administrators suspended employee and Union delegate Ronald James for three days for allegedly distributing union literature in the Hospital cafeteria. A guard escorted him out of the building. Following the election, the Hospital reduced his suspension to an oral warning. Id.

c. The ALJ found that an incident involving supervisor Clyde Sams and John Mobley, an employee in the Escort Department, constituted a coercive threat in violation of section 8(a)(1). ALJ Decision at 26. After learning that Mobley intended to distribute union literature during his lunch break, Sams advised Mobley that he would hold him responsible for any union literature he saw "around." The ALJ found that Sams had dissuaded Mobley from passing out the literature. Id. at 9.

d. The ALJ found that the Hospital violated section 8(a)(1) by maintaining rules that precluded the unauthorized solicitation of its employees for any purpose and forbade the distribution of nonwork-related materials without the Hospital's prior approval. ALJ Decision at 26-27, 34. The no-solicitation rule was set forth in the "Uniform Code of Rules for Employees" printed on the back of a personnel evaluation form that the Hospital gave employees each year. It states that "[u]nauthorized solicitation of employees, patients and visitors on St. Agnes Hospital premises for any purpose" shall be grounds for suspension and/or dismissal. In addition, St. Agnes' executive vice-president, Thomas Callaghan, declared in a prehearing affidavit that the Hospital did not permit the distribution of nonwork-related material without prior approval.

e. The ALJ found that two incidents constituted coercive interrogations in violation of section 8(a)(1). ALJ Decision at 32 & n. 22. In the first, supervisor Diane Plotkin summoned physical therapy aide Michelle Holmes into her office for a one-on-one meeting. Plotkin gave Holmes anti-union literature and explained why she should vote against the Union in the upcoming election. She then asked Holmes how she felt about the current state of affairs and asked her to present the Union's side of the story. Holmes expressed her displeasure with the number of meetings the Hospital had held concerning the dispute and asked if her attendance was mandatory. Plotkin told her it was.

In the second, supervisor Sandra Stanley approached nursing assistant Ethlyn Chambers at a nurses' station. Stanley placed a stack of anti-union literature in front of Chambers and instructed her to "take one ... and distribute the rest [to] the other girls." Chambers scanned the literature and walked away. She did not distribute it.

f. A few days before the election, supervisor Diane Plotkin told a group of employees that a lawyer for the Hospital had said that "things looked good for the Hospital" and that after the election, a five-hour reduction in their work schedule would be reversed. The ALJ concluded that Plotkin's linkage of the assertion that "things looked good for the Hospital" with the statement that the hours would be restored constituted a promise of benefits predicated on the defeat of the Union in violation of section 8(a)(1). ALJ Decision at 11, 32, 34. The ALJ found support for this conclusion in a letter sent to employees immediately after the expiration of the Agreement. The letter noted that it was being written on the "first workday without the interference of a union" and stated that the Hospital was "committed to restoring the 40-hour work week as soon as feasible...."

g. The ALJ found that the Hospital had violated sections 8(a)(1) and 8(a)(5) by unilaterally limiting the Union's access to the Hospital and restricting its use of a bulletin board. ALJ Decision at 29.

With respect to the Union's access to the Hospital, Article VI, par. 3 of the Agreement states that "Representatives of the UNION, after first receiving permission of the Personnel Director, shall have reasonable access to ST. AGNES for purposes of administering this Agreement." The ALJ found that prior to the filing of the decertification petition, the Union had essentially unrestricted access to the Hospital. Union business agent Pat DiDomenico, whose job was to "service the contract," visited St. Agnes without advance notice and was admitted after checking in with a security guard upon her arrival. She often went to the cafeteria to have lunch with the employees and, regardless of her destination, she frequently stopped and talked with employees along the way. The Hospital never placed any limits on the purposes for which she could enter the Hospital. After the filing of the decertification petition and a few incidents of alleged leafletting at the Hospital, the Hospital unilaterally limited DiDomenico's access to the task of processing grievances, refused to allow her to visit with the employees, and denied two union organizers access to the Hospital on the grounds that they were not the Union's regular representatives.

With respect to the bulletin board, Article VI, par. 4 of the Agreement states that the Hospital shall provide an enclosed board for "posting notices pertaining to UNION business." The ALJ found...

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