Veritas Health Servs. Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 13 March 2012
• Docket Number: Nos. 11–1107,11–1127.,s. 11–1107
• Citation: 671 F.3d 1267,192 L.R.R.M. (BNA) 3057
• Parties: VERITAS HEALTH SERVICES, INC., Doing Business as Chino Valley Medical Center, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL–CIO, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

192 L.R.R.M. (BNA) 3057

671 F.3d 1267

VERITAS HEALTH SERVICES, INC., Doing Business as Chino Valley Medical Center, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL–CIO, Intervenor.

Nos. 11–1107

11–1127.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 1, 2011.Decided March 13, 2012.

On Petition for Review and Cross–Application for Enforcement of an Order of the National Labor Relations Board.Theodore R. Scott argued the cause for petitioner. With him on the briefs was Edward F. Berbarie. Steven L. Rahhal entered an appearance.

Barbara A. Sheehy, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Jill A. Griffin, Supervisory Attorney. Ruth E. Burdick, Attorney, entered an appearance.

Lisa C. Demidovich argued the cause for intervenor United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL–CIO, in support of respondent.

Before: GARLAND and KAVANAUGH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge:

In an April 2010 union election, registered nurses working for Veritas Health Services voted to make the United Nurses Associations of California/Union of Health Care Professionals their bargaining representative. But Veritas would not bargain with the Union because Veritas claimed that pro-Union conduct by supervising charge nurses had coerced the registered nurses' votes and tainted the election. Rejecting Veritas's claims, the National Labor Relations Board certified the Union and found that Veritas had committed an unfair labor practice by refusing to bargain. Veritas has petitioned for review in this Court. We conclude that precedent and substantial evidence support the Board's conclusions. We therefore deny Veritas's petition and grant the Board's cross-application for enforcement of its order.

I

By early 2010, the United Nurses Associations of California/Union of Health Care Professionals organized a campaign to represent the nurses at the Chino Valley Medical Center, a community hospital operated by Veritas Health Services. In order for the Union to successfully petition the National Labor Relations Board to hold an election, the Union needed cards authorizing representation from 30% of employees. See 29 C.F.R. § 101.18(a).

In seeking the necessary authorization cards, the Union reached out to registered nurses. It also contacted charge nurses. Charge nurses supervise registered nurses by, among other things, directing and assigning work to registered nurses.

The Union's efforts to recruit charge nurses succeeded. Several charge nurses signed authorization cards, met with Union representatives, and attended Union meetings. Some also expressed pro-Union sympathies.

Some of the charge nurses actively encouraged subordinate registered nurses to support the Union. The two charge nurses who most actively promoted the Union were Angelica Silva and Cheryl Gilliatt. Silva talked to six registered nurses about future Union meetings, forwarding text-message reminders to some and approaching others in person to ask if they planned to attend. Gilliatt did even more. She told about 10 registered nurses to attend the Union's meetings, saying, for example, “You need to attend after work today.” Hr'g Tr. 310, May 26, 2010. And she encouraged them to sign authorization cards, asking, for example, “Have you signed a card? When are you planning on going? You only have until Sunday, and you need to go and sign the card.” Id. at 328.

On February 22, 2010, after collecting the necessary authorization cards, the Union petitioned the National Labor Relations Board to hold an election. The election was scheduled for April 1 and 2, 2010.

On March 5, the parties stipulated that these charge nurses were supervisors under the National Labor Relations Act. As a result, the charge nurses could not vote in the election. After the stipulation, charge nurses apparently stopped most of their pro-Union conduct. Soon thereafter, moreover, Veritas promoted Gilliatt and Silva to managerial positions. Perhaps not coincidently, both Gilliatt and Silva then actively opposed the Union. Gilliatt told 20 to 30 registered nurses that she no longer supported the Union. Silva told four registered nurses the same thing. And during election week, both signed letters—personalized for every registered nurse and printed on company letterhead—that urged the registered nurses to vote against the Union:

Thursday, April 1 and Friday, April 2, 2010 are very important dates for you, your family and the hospital. It's very important that you vote and please remember your vote is secret.

We've already seen the union's misrepresentation, bullying tactics and the divisiveness that has resulted. In contrast, we have been open and honest with you and provided only factual information to help you make an informed decision.

We the Chino Family enjoy our relationship and hope to maintain a union free environment. Please vote no on Thursday, April 1 and Friday, April 2, 2010. Letter from Chino Valley Medical Center, Joint Appendix 653. The letters were distributed to most of the registered nurses.

The Union won the election, with 72 votes in favor of the Union and 39 votes against (plus four contested ballots).

Veritas filed objections with the Board, claiming that the charge nurses' pro-Union conduct had tainted the election by coercing and interfering with the free choice of the registered nurses they supervised. After a multi-day hearing, the Administrative Law Judge ruled against Veritas. The Board adopted the ALJ's opinion and certified the Union. The next day, the Union sent Veritas a letter asking Veritas to bargain collectively. Veritas refused, saying the certification was illegitimate because the election was invalid. The day after that, the Union filed an unfair labor practice charge for refusing to bargain. Because the Board had already upheld the election, it rejected Veritas's claims and found that Veritas committed an unfair labor practice by refusing to bargain with the Union. Veritas has petitioned this Court for review, and the Board has cross-applied for enforcement of its order.

II

An employer must bargain collectively with a union that is duly certified as the employees' bargaining representative. If the employer refuses to do so, it commits an unfair labor practice under Section 8(a)(5) of the National Labor Relations Act. 29 U.S.C. § 158(a)(5). “An employer who violates section 8(a)(5) also derivatively violates section 8(a)(1), which makes it unlawful for an employer ‘to interfere with, restrain, or coerce employees in the exercise of’ their statutory labor rights.” Regal Cinemas, Inc. v. NLRB, 317 F.3d 300, 309 n. 5 (D.C.Cir.2003) (quoting 29 U.S.C. § 158(a)(1)).

Here, Veritas admits that it refused to bargain collectively with the Union. But it defends its refusal to bargain on the ground that the Union should not have been certified. Specifically, Veritas argues that the charge nurses' pro-Union conduct made the union election invalid.

A

Our review of this kind of NLRB decision is narrow. “We must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board's findings are not supported by substantial evidence, or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case.” Wayneview Care Center v. NLRB, 664 F.3d 341, 348 (D.C.Cir.2011) (citation omitted). In the specific context of a representation election, we “will set aside a representation election only if the petitioning party demonstrates that the conduct complained of interfered with the employees' exercise of free choice to such an extent that it materially affected the election.” U–Haul Co. of Nevada v. NLRB, 490 F.3d 957, 961 (D.C.Cir.2007) (citation, internal quotation marks, and brackets omitted).

Under that standard, the question here is whether the pro-Union conduct of the charge nurses rose to the level of interference with the registered nurses' exercise of free choice.

In analyzing that question, we begin by noting that this case presents the unusual situation of a supervisor alleged to have engaged in improper interference in support of a union. The National Labor Relations Act excludes supervisors from its definition of “employee.” See 29 U.S.C. § 152(3). An employer thus has “the right to discharge such supervisors because of their involvement in union activities or union membership.” Florida Power & Light Co. v. Int'l Brotherhood of Electrical Workers, Local 641, 417 U.S. 790, 808, 94 S.Ct. 2737, 41 L.Ed.2d 477 (1974). Given that reality, supervisors do not usually engage in pro-union activities against the wishes of management. But the issue of pro-union conduct by a supervisor sometimes arises when it was unclear or disputed at the time of the pro-union activity whether the employee was a statutory supervisor. See, e.g., Northeast Iowa Telephone Co., 346 N.L.R.B. 465, 466 (2006); Terry Machine Co., 332 N.L.R.B. 855, 855–56 (2000).

When faced with pro-union conduct by supervisors, the Board uses a two-pronged test—known as the Harborside test—to decide whether the conduct requires setting aside the election:

(1) Whether the supervisor's pro-union conduct reasonably tended to coerce or interfere with the employees' exercise of free choice in the election.

This inquiry includes: (a) consideration of the nature and degree of supervisory authority possessed by those who engage in the pro-union conduct; and (b) an examination of the nature, extent, and context of the conduct in question.

(2) Whether the conduct interfered with freedom of choice to the extent that it materially...