Wright Memorial Hosp. v. N.L.R.B., Region 17
| Decision Date | 26 August 1985 |
| Docket Number | No. 84-2025,84-2025 |
| Citation | 771 F.2d 400 |
| Parties | 120 L.R.R.M. (BNA) 2193, 103 Lab.Cas. P 11,596 WRIGHT MEMORIAL HOSPITAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, REGION 17, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James G. Baker, Kansas City, Mo., for petitioner.
Abby Simms, N.L.R.B., Washington, D.C., for respondent.
Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and HARRIS, * Senior District Judge.
Wright Memorial Hospital (the hospital) requests review of an order of the National Labor Relations Board (the Board) dated July 6, 1984, in which the Board ordered the hospital to bargain with Service Employees International Union, AFL-CIO-CLC, Local 50 (the union). The Board has cross-applied for enforcement of its order. For reversal the hospital argues that the union was improperly certified because (1) the involvement of supervisors in the election tainted the election process and required a new election and (2) the Board improperly denied the hospital's motion to dismiss the union's certification petition on the basis that the authorization cards were tainted by supervisory involvement. For the reasons discussed below, we enforce the Board's order.
The hospital is a seventy-eight (78) bed facility in Trenton, Missouri, located in a one-story building with a basement. The main floor is divided into three wings with a nursing station in each wing. Each nursing station has a registered nurse "in charge" on each of three shifts. The fifteen registered nurses so assigned are called charge nurses.
On October 8, 1980, the union filed a petition to be certified as the bargaining representative of certain employees, including charge nurses, at the hospital. On October 22, 1980, the Board's Region 17 office (Kansas City) conducted a hearing on the representation petition. At the hearing the hospital contended that the charge nurses were supervisors within the meaning of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. (1982) (Act), and thus could not be part of the bargaining unit. The union urged the inclusion of the charge nurses. The regional director rejected the hospital's arguments and decided that the charge nurses were professional employees rather than supervisors.
On November 17, 1980, the hospital filed a timely request for review of the regional director's decision but did not request a stay of the election. While the hospital's request for review was pending before the Board, the election campaign proceeded. It is undisputed that a number of charge nurses campaigned actively on behalf of the union. The nurses wore union buttons to work, attended union meetings, handed out union buttons, passed out authorization cards and responded to questions at union meetings.
On December 4, 1980, the Board conducted a secret ballot election. The ballots were subsequently impounded and the ballots of the charge nurses were segregated from the others pending disposition of the hospital's request for review. Five months after the election, on May 5, 1981, the Board overruled the regional director and held that the charge nurses were supervisors. Wright Memorial Hospital, 255 N.L.R.B. 1319, 1320 (1981). The Board, while acknowledging that the charge nurses do not hire, fire or interview potential employees, held that the charge nurses were supervisory because they had the authority to "hold employees over to work overtime, release employees from work, assign work and set priorities for employees, call in off-duty employees to work, resolve complaints or grievances, evaluate employees in writing, give written reprimands, send employees home on disciplinary suspension without pay, and recommend harsher discipline up to and including discharge." Id. The Board remanded the case to the regional director for the purpose of opening and counting the ballots of the eligible voters.
On May 13, 1981 (six days after the Board's reversal of the regional director's decision), the hospital filed a motion to dismiss on the grounds that the pro-union activities of the charge nurses tainted the petition and invalidated the showing of interest. This motion was subsequently denied by the regional director as untimely. The regional director held that the issue should have been raised in the request for review filed with the Board in November of 1980 and, moreover, that the region had not discovered any taint or inadequacy in the showing of interest. On June 4, 1981, the Board denied the hospital's appeal of the regional director's denial of the motion to dismiss.
On June 11, 1981, the ballots of the eligible voters were opened and counted. Of the 147 ballots cast, 87 were in favor of the union, 55 were against representation by the union, and 5 were challenged.
On June 18, 1981, the hospital filed objections to the election. The hospital argued that (1) the union recruited a large number of the hospital supervisors and those supervisors solicited support and campaigned on behalf of the union throughout the election campaign, (2) a number of the union's organizational and strategy meetings which were attended by employees were held in the homes of supervisors, (3) hospital supervisors actively solicited employees to sign authorization cards on behalf of the union and to vote in favor of the union and (4) three supervisors served as principal organizers on behalf of the union. On July 9, 1981, a hearing was held on the objections and the hearing officer subsequently recommended that the objections be overruled in their entirety and that the union be certified. On March 10, 1982, the Board adopted the hearing officer's recommendations and certified the union.
On July 16, 1982, the union requested that the hospital bargain with it. By letter dated July 22, 1982, the hospital refused to bargain with the union. On April 20 and August 11, 1982, pursuant to a charge filed by the union, the regional director issued a complaint and an amended complaint alleging that the hospital had violated Sec. 8(a)(5) and (1) of the Act by refusing to bargain with the union. The hospital admitted its refusal to bargain but argued that the union was improperly certified.
On September 23, 1982, the general counsel filed a motion for summary judgment and, on October 5, 1982, the Board issued an order transferring the case to itself and a notice to show cause why the general counsel's motion should not be granted. After reviewing the hospital's response to the notice to show cause, the Board granted the motion for summary judgment on July 6, 1984, and ordered the hospital to bargain with the union. The hospital thereafter sought a review of this order in federal court and the Board cross-applied for enforcement.
The primary issue before the court is whether the Board abused its discretion in overruling the hospital's objections to the election and certifying the union. " 'Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.' " Macy's Missouri-Kansas Division v. NLRB, 389 F.2d 835, 842 (8th Cir.1968), citing NLRB v. A.J. Tower Co., 329 U.S. 324, 330-31, 67 S.Ct. 324, 327-28, 91 L.Ed. 322 (1946); see NLRB v. Manufacturer's Packing Co., 645 F.2d 223, 225-26 (4th Cir.1981); Independent, Inc. v. NLRB, 406 F.2d 203, 206 (5th Cir.1969). The court's review is "necessarily limited to a determination whether the board reasonably exercised [its] discretion." Independent, Inc. v. NLRB, 406 F.2d at 206. The party seeking to overturn a representation election has the burden of showing that the election was unfairly conducted. NLRB v. Skelly Oil Co., 473 F.2d 1079, 1083 (8th Cir.1973); see NLRB v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 435, 5 L.Ed.2d 455 (1961); NLRB v. Manufacturer's Packing Co., 645 F.2d at 225. As the court stated in NLRB v. Golden Age Beverage Co., "specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election." Id., 415 F.2d 26, 30 (5th Cir.1969).
A union election is not per se invalid simply because there is evidence of pro-union supervisory activity. NLRB v. Manufacturer's Packing Co., 645 F.2d at 225-26; Catholic Medical Center v. NLRB, 620 F.2d 20, 22 (2d Cir.1980). This court has held that "supervisory support for a union will invalidate the union's majority only when the supervisor's activities (1) cause the employees to believe that the supervisors are acting on behalf of the employer and that the employer favors the union or (2) led the employees to support the union because they fear future retaliation by the supervisors." NLRB v. Wehrenberg Theatres, Inc., 690 F.2d 159, 162 (8th Cir.1982). See Fall River Savings Bank v. NLRB, 649 F.2d 50, 56 (1st Cir.1981); Catholic Medical Center v. NLRB, 620 F.2d at 22; Stevenson Equipment Co. v. NLRB, 174 N.L.R.B. 865, 866 (1969). The critical question is whether the supervisors' actions " 'created an atmosphere of tension or coercion such as to preclude employees from exercising a free choice.' " NLRB v. Klingler Electric Corp., 656 F.2d 76, 86 (5th Cir.1981), citing NLRB v. Singleton Packing Corp., 418 F.2d 275, 281 (5th Cir.1969), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970). See NLRB v. Manufacturer's Packing Co., 645 F.2d at 225-26. The "[d]etermination of the effect of the supervisors' conduct is essentially a matter of drawing inferences, and it has long been settled that an agency's conclusions based upon such inferences should not be set aside by a reviewing court unless they transgress the bounds of reason." Catholic Medical Center v. NLRB, 620 F.2d at 22; see NLRB v. Manufacturer's Packing Co., 645 F.2d at 226.
The hospital does not...
To continue reading
Request your trial
-
Rhode Island Higher Educ. Assistance Authority v. Secretary, U.S. Dept. of Educ.
...to adopt and apply presumptions if the proven facts and the inferred facts are rationally connected."); Wright Memorial Hosp. v. N.L.R.B., 771 F.2d 400, 404 (8th Cir.1985) (" '[I]t has long been settled that an agency's conclusions based upon ... inferences should not be set aside by a revi......
-
Warren Unilube, Inc. v. Nat'l Labor Relations Bd.
...80,141 (Dec. 22, 2011). We cite the regulations in effect at the time of the Board's action in this case. 2. In Wright Memorial Hospital v. NLRB, 771 F.2d 400 (8th Cir.1985), this court did say that the issue on appeal was whether “the Board abused its discretion” in overruling an employer'......
- Hernandez v. Woodard, 88 C 8345.
-
Evergreen Healthcare, Inc. v. N.L.R.B., s. 95-6039
...in the conduct deemed improper largely by only one nurse in River Walk. The Hearing Officer principally relied on Wright Memorial Hosp. v. NLRB, 771 F.2d 400 (8th Cir.1985), in concluding that the supervisory nurses' conduct did not warrant setting aside the election. Contrary to the Hearin......