Waterbury Hosp. v. N.L.R.B.
| Decision Date | 03 December 1991 |
| Docket Number | 1529,D,Nos. 1528,s. 1528 |
| Citation | 950 F.2d 849 |
| Parties | 139 L.R.R.M. (BNA) 2005, 60 USLW 2451, 120 Lab.Cas. P 11,036 The WATERBURY HOSPITAL, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. ockets 91-4018, 91-4032. |
| Court | U.S. Court of Appeals — Second Circuit |
George Bradford Palmer, Jr., Waterbury, Conn. (D. Charles Stohler, Carmody & Torrance, Waterbury, Conn., on the brief), for petitioner-cross-respondent.
Linda Dreeben, Supervisory Atty., N.L.R.B., Washington, D.C. (Margaret E. Luke, Atty., Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Washington, D.C., on the brief), for respondent-cross-petitioner.
Before KEARSE, MAHONEY and SNEED *, Circuit Judges.
Petitioner The Waterbury Hospital (the "Hospital") petitions for review of so much of an order of respondent National Labor Relations Board (the "Board") as found the Hospital in violation of §§ 8(a)(1) and (3) of the National Labor Relations Act ("Act"), 29 U.S.C. §§ 158(a)(1) and (3) (1988), and ordered it to, inter alia, cease and desist from refusing to reinstate striking employees to their former positions and from according job preferences to nonstrikers over strikers. In support of its petition, the Hospital contends principally that the Board made inadequate findings of fact, applied incorrect standards of law, and improperly rejected the Hospital's business-justification defense. The Board cross-petitions for enforcement of its order. For the reasons below, we deny the Hospital's petition for review and grant the Board's cross-petition for enforcement.
The Hospital operates a nonprofit community hospital in Waterbury, Connecticut, normally employing some 600 nurses. Prior to May 31, 1986, it was party to a collective bargaining agreement with the union representing the nurses, Connecticut Health Care Associates, District 1199, National Union of Hospital and Health Care Employees, AFL-CIO ("the Union"). The period covered by that agreement ended on May 31, 1986, without a new agreement having been reached, and the Union served a strike notice on the Hospital. The Hospital promptly shut down, laying off all employees. On June 4, the Union commenced a strike against the Hospital.
In mid-June, responding to community needs for prenatal care and one-day surgical services, the Hospital reopened two of its units, staffing them with managerial and/or supervisory nursing employees. Thereafter, it decided to reopen some, though not all, of its other units. Some employee nurses abandoned the strike and crossed the picket line (the "crossovers"). The Hospital also began to hire new nurses. It offered both the new employees and the crossovers (collectively the "nonstrikers") their choices of positions, including shifts; if the nonstriker's preferred position was in a department that was neither open nor immediately to be reopened, or in one that was open but not in immediate need of such a position, the Hospital guaranteed that that individual would be placed in the preferred position following the conclusion of the strike. Individual contracts with the nonstrikers stated:
In view of the labor dispute currently under way at the Hospital, the position offered to you is a permanent position which you shall retain, subject to satisfactory performance, regardless of how the labor dispute is finally resolved.... [D]epending on scheduling, patient census, and other factors your first week of employment might require you to work on a rotating shift basis or in another unit until your job opens.
In August, the Hospital and the Union resumed contract negotiations. The Union proposed that all striking nurses, including crossovers, be returned to their prestrike positions. The Hospital took the stance that all nonstrikers were hired as permanent replacements in their guaranteed positions, although many of them did not occupy those positions during the strike. On October 4, 1986, a new collective bargaining agreement was signed, and the Union notified the Hospital of its unconditional offer to have the striking workers return to work. The new collective bargaining agreement provided that striking nurses would be returned to work as soon as the patient population warranted but did not guarantee that those nurses would be reinstated in their prior positions. In addition, while reserving to the Union and the Hospital their respective rights to pursue any legal claims, the agreement provided that the nonstrikers would not be subject to displacement from their chosen positions for a period of 12 months after the end of the strike (the "no-bumping provision").
By October 4, the Hospital's nursing staff totaled 109 nonstrikers: 62 crossovers who had returned to their prestrike positions, 19 crossovers who had taken different positions, and 28 newly hired nurses. After striking nurses began returning to work on October 5, 1986, the Hospital began opening the units that had been closed during the strike. Strikers whose positions had been filled by or promised to nonstrikers were not returned to those positions.
During the strike, the Union had filed unfair labor practice charges with the Board, complaining of the Hospital's refusal to reinstate all strikers to their prestrike positions, and it pursued those charges after the end of the strike. The Board, adopting the decision of an administrative law judge entered after an evidentiary hearing ("Board Decision"), concluded that the Hospital had engaged in unfair labor practices in violation of §§ 8(a)(1) and (3) of the Act by (1) refusing to reinstate some striking nurses to their prestrike positions and discriminating in favor of nonstrikers in the awarding of such positions, and (2) using the no-bumping provision to grant superseniority rights to nonstrikers for the 12 months following the conclusion of the strike.
The Board discussed the pertinent Supreme Court and circuit cases and stated that
[t]he law is clear that an employer may lawfully hire permanent replacements, including new hires and crossover employees, for striking employees during the course of an economic strike and at the end of the strike is not required to discharge or layoff such permanent replacements in order to cr[e]ate vacancies Board Decision at 39-40. The Board rejected the contention that the Hospital had been forced to offer an unrestricted choice of positions and to make the replacements permanent in order to hire nurses during the strike, noting that the Hospital had offered no proof that nonstrikers could not have been recruited by other means. The Board found some of the circumstances of the present case somewhat analogous to those in Lincoln Hills Nursing Home, 257 N.L.R.B. 1145, 1159 (1981), in which replacements had impermissibly been given positions that were not actually vacant or available during the strike.
for the striking employees seeking reinstatement.... However, both the Courts and the Board have recognized some limitation on an employer's right to refuse reinstatement to an economic striker under the "legitimate and substantial business justification["] [ ]rationale on the basis of a consideration of what constitutes a "permanent replacement."
In the present case, the Board found that two categories of nonstrikers were not permanent replacements because they had been given poststrike positions that were not the positions they occupied during the strike. First, noting that some nonstrikers were given poststrike positions in departments that had not been open during the strike, it found those positions not actually available during the strike and concluded that the nonstrikers given those positions should not be considered permanent replacements. The Board judged it
inherently destructive of strikers['] reinstated [sic ] rights for the [Hospital] to accord striker replacements preferences by awarding them positions in areas of the hospital which did not open until after the strike ended and at a time when there were striking employees with greater seniority awaiting reinstatement.
Board Decision at 42. Second, with respect to departments that were open during the strike, the Board found that nonstrikers who during the strike were neither working in their poststrike positions nor being trained for those positions were not to be considered permanent replacements.
On the other hand, the Board ruled that nonstrikers who continued after the strike to fill positions they had filled during the strike were properly considered permanent replacements. Further, as to nonstrikers who did not fill their poststrike positions during the strike, the Board ruled that if their poststrike positions were in departments that were open during the strike and they were being trained for those positions during the strike, they would be deemed permanent replacements.
Thus, the Board summarized its rulings as follows:
The [Hospital] acknowledged that it had not and reasonably could not set an actual date for the reopening of the closed hospital areas nor predict with some reliability when already reopened areas would expand their services. Therefore, under these circumstances, unless the "replacement" commenced working in the position awarded during the strike and prior to the striker's unconditional offer to return to work, the non-striking employee would not be a "permanent replacement" justifying the denial of reinstatement to returning strikers. Of course this would not include instances wherein the [Hospital] awarded positions to more nonstrikers in a hospital area than the Hospital's operational needs required and some of these "replacements" were in training sessions or in orientation in or away from their positions or areas.
Board Decision at 43-44 (footnotes omitted...
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