St. Francis Federation of Nurses and Health Professionals v. N.L.R.B., AFL-CI

• Decision Date: 16 March 1984
• Docket Number: AFL-CI,82-2474,P,Nos. 82-2024,s. 82-2024
• Citation: 729 F.2d 844
• Parties: 115 L.R.R.M. (BNA) 3352, 115 L.R.R.M. (BNA) 3445, 234 U.S.App.D.C. 358, 100 Lab.Cas. P 10,904 ST. FRANCIS FEDERATION OF NURSES AND HEALTH PROFESSIONALS, affiliated with the Wisconsin Federation of Nurses and Health Professionals, affiliated with the American Federation of Teachers,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, St. Francis Hospital, Modern Management, Inc., Intervenors. ST. FRANCIS HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Modern Management, Inc., St. Francis Federation of Nurses and Health Professionals, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 844

729 F.2d 844

115 L.R.R.M. (BNA) 3352, 115 L.R.R.M. (BNA) 3445,

234 U.S.App.D.C. 358, 100 Lab.Cas. P 10,904

ST. FRANCIS FEDERATION OF NURSES AND HEALTH PROFESSIONALS,

affiliated with the Wisconsin Federation of Nurses and

Health Professionals, affiliated with the American

Federation of Teachers, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, St. Francis Hospital, Modern Management, Inc., Intervenors.

ST. FRANCIS HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent,

Modern Management, Inc., St. Francis Federation of Nurses

and Health Professionals, Intervenors.

Nos. 82-2024, 82-2474.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 15, 1983.

Decided March 16, 1984.

Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Gregory N. Freerksen, Chicago, Ill., with whom Michael Radzilowsky, Chicago, Ill., were on the brief for St. Francis Federation of Nurses and Health Professionals, affiliated with the Wisconsin Federation of Nurses and Health Professionals, affiliated with the American Federation of Teachers, AFL-CIO, petitioner in No. 82-2024 and intervenor in No. 82-2474.

David B. Kern, Milwaukee, Wis., with whom James C. Mallien, Thomas W. Ehrmann and Ely A. Leichtling, Milwaukee, Wis., were on the brief, for St. Francis Hosp., petitioner in No. 82-2474 and intervenor in No. 82-2024.

David S. Fishback, Atty., N.L.R.B., Washington, D.C., with whom Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., was on the brief for respondent.

Lawrence M. Cohen, Chicago, Ill., for Modern Management, Inc. intervenor in Nos. 82-2024 and 82-2474.

Before MIKVA and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MIKVA.

Opinion dissenting in part filed by Circuit Judge GINSBURG.

MIKVA, Circuit Judge:

This case arises from a 1979 anti-union campaign conducted by Saint Francis Hospital (Saint Francis or the Hospital) prior to a scheduled representation election among the Hospital's nurses. The Federation of Nurses and Health Professionals (the Union) lost the election by a few votes and filed unfair labor practice charges against the Hospital and its labor relations consultant, Modern Management (2M). The National Labor Relations Board (NLRB or the Board) absolved 2M of any liability, but concluded that the Hospital had committed numerous unfair labor practices which invalidated the election results. 263 NLRB 834 (1982). Rather than directing a new election, the Board ordered the Hospital to bargain with the Union.

This appeal consolidates two petitions for review of the Board's actions. In the first petition, the Hospital challenges the individual findings of unfair labor practices and the Board's decision to issue a bargaining order, rather than to order a new election. In the second petition, the Union challenges the Board's failure to hold the consulting firm liable for the commission of unfair labor practices and the Board's failure to prohibit Saint Francis from soliciting employees at the Hospital during working hours. We deny both petitions for review and grant enforcement of the Board's order in its entirety.

The issues raised by these petitions are more numerous than they are complex. The Board found that Saint Francis committed a series of unfair labor practices in the course of a heated anti-union campaign--practices that unlawfully coerced employees in the free exercise of their right to select a collective bargaining representative. Because of the "serious and pervasive ... impact" of the Hospital's unlawful conduct, the Board concluded that a bargaining order was appropriate. Id. at 837. The Hospital argues that, even if the Board is upheld in its findings of unfair labor practices, we should not enforce the Board's chosen remedy. At the very least, argues the Hospital, there should be a rerun election rather than an order that the Hospital bargain with the Union. This case was argued before this court nearly four years after the Union election was

held at Saint Francis. Despite the Hospital's strenuous plea to the contrary, we fail to see how reversal of the Board's bargaining order and direction of a rerun election--a process that could take several more months and give rise to further protracted legal proceedings--would "effectuate the policies" of the National Labor Relations Act. 29 U.S.C. Sec. 160(c) (1976). The Board's discretion in fashioning remedies under the Act is extremely broad and subject to very limited judicial review. We therefore uphold the Board's bargaining order.

BACKGROUND

Saint Francis is a hospital in Milwaukee, Wisconsin, which employs approximately 200 full-time and part-time non-supervisory registered nurses. During the spring of 1979 (unless otherwise stated all dates will refer to 1979), Hospital administrators met with members of the nursing staff on numerous occasions to discuss the nurses' dissatisfaction with certain aspects of the Hospital's operations. The administrators knew that some nurses were interested in unionizing.

In June, the Federation of Nurses and Health Professionals commenced an organizing campaign within the Hospital. By August 17, a majority--123 out of 207--of the Hospital's non-supervisory registered nurses (the nurses) had signed cards designating the Union as their exclusive bargaining representative. The Union filed an election petition with the NLRB on August 23. The Board granted the petition on September 28 and set the election date for October 26.

The Union and the Hospital intensified their campaigns in the fall. Saint Francis had occasionally used the services of a consultant, 2M, for assistance in coordinating its employee relations efforts. It retained the firm in 1976 to advise it on how to resist a previous unionization campaign. In September, the Hospital again retained 2M to serve as its campaign advisor in the upcoming election. The firm advised supervisors as to how to approach employees to urge them to vote against unionization and explained what forms of persuasion were lawful. Throughout the fall, supervisors initiated numerous conversations with members of the nursing staff concerning unionization. The supervisors' conduct was the basis for most of the unfair labor practice charges subsequently brought by the Union.

On September 19, the Administrator of Saint Francis was replaced by American Healthcare Management, Inc. headed by David Rose. As Acting Administrator of the Hospital, Rose sent numerous communications to the staff voicing his concerns over unionization. Two weeks prior to the election, Rose announced that there would be a ten percent across-the-board wage increase for all employees on November 4, that employees would be eligible for merit increases beginning in January, 1980, and that the Hospital would consider further cost-of-living increases in July, 1980.

The election was held on October 26 and the Union lost by a vote of 95-100. The Union subsequently filed unfair labor practice charges with the Board, claiming that the Hospital and 2M unlawfully interfered with the Union's organizational campaign. After a hearing, the Administrative Law Judge (ALJ) found against the Hospital in most respects. He concluded that the Hospital violated section 8(a)(1) of the National Labor Relations Act (NLRA or the Act), 29 U.S.C. Sec. 158(a)(1) (1976), by coercing employees through promises and grants of benefits and through interrogations and threats of reprisals. He also determined that the Hospital violated section 8(a)(3) of the Act, 29 U.S.C. Sec. 158(a)(3) (1976), by denying employees registration fees and leave to attend a Union-sponsored training seminar.

As previously indicated, the Union had obtained a majority of designation cards from the registered nurses in the unit. To remedy the effects of Saint Francis' unlawful conduct, the ALJ recommended that the Hospital be ordered to bargain with the Union. He also recommended that the Hospital be ordered to provide the Union The Board adopted the ALJ's recommended order with certain modifications. It found that Saint Francis had committed numerous unfair labor practices and agreed with the ALJ that a bargaining order was an appropriate remedy in light of the "serious and pervasive ... impact" of the Hospital's unlawful conduct. 263 NLRB at 837. It also upheld the ALJ's determination that 2M was not responsible for the commission of any unfair labor practices, but reversed the ALJ's imposition of an equal access remedy.

with access to employees on Hospital grounds during working hours so as to equalize the access to employees which the Hospital already enjoyed. The ALJ, however, recommended dismissal of the claims against 2M, concluding that the firm could not be held responsible under the Act for the commission of any unfair labor practices.

DISCUSSION

Our standard of review in this case is well established. We must uphold the Board's findings if they are "supported by substantial evidence on the record considered as a whole ...." 29 U.S.C. Sec. 160(e) (1976). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Pedro's Inc. v. NLRB, 652 F.2d 1005, 1007 (D.C.Cir.1981). We apply a "deferential standard of review ... when the Board engages in a reasoned exercise of its expert judgment." Conair Corp. v. NLRB, 721 F.2d 1355 at 1373 (D.C.Cir.1983).

The Board has broad authority to devise remedies which will "effectuate the policies" of the National Labor Relations Act, 29 U.S.C. Sec. 160(c) (1976), and its "choice of remedies is entitled to a high degree of deference by a reviewing court." Teamsters Local 115 v. NLRB, 640 F.2d 392, 399 (D.C.Cir.1981), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981). See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964) (the...