Grane Health Care v. National Labor Relations Board , 712 F.3d 145 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 11-4345 & 11-4537
________________
GRANE HEALTH CARE;
EBENSBURG CARE CENTER LLC, d/b/a
CAMBRIA CARE CENTER,
Petitioners (No. 11-4345)
Cross-Respondents
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
Cross-Petitioner (No. 11-4537)
________________
Petition for Review and Cross-Application
For Enforcement of an Order of
The National Labor Relations Board
(Nos. 6-CA-36791/36803/36915)
________________
Argued September 18, 2012
Before: AMBRO, GREENAWAY, JR.,
and TASHIMA,* Circuit Judges
(Opinion filed: April 5, 2013)
Richard J. Antonelli, Esquire (Argued)
John A. McCreary, Jr., Esquire
Rebecca J. Dick-Hurwitz, Esquire
Babst, Calland, Clements & Zomnir
Two Gateway Center, 6th Floor
Pittsburgh, PA 15222
Counsel for Petitioners/Cross-Respondents
Grane Health Care, Ebensburg Care Center LLC
Lafe E. Solomon
Acting General Counsel
Celeste J. Mattina
Deputy General Counsel
John H. Ferguson
Associate General Counsel
Linda Dreeben
Deputy Associate General Counsel
Jill A. Griffin, Esquire
Gregory P. Lauro, Esquire (Argued)
National Labor Relations Board
Appellate and Supreme Court
Litigation Branch, Division of Enforcement
1099 14th Street, N.W.
*
Honorable A. Wallace Tashima, Senior Circuit Judge for the
Ninth Circuit Court of Appeals, sitting by designation.
2
Washington, DC 20570
Counsel for Respondent/Cross-Petitioner
National Labor Relations Board
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
For many years Cambria County, a political
subdivision of Pennsylvania, owned and operated Laurel
Crest Nursing and Rehabilitation Center (―Laurel Crest‖). As
a state-owned facility, labor relations at Laurel Crest were
subject to Pennsylvania labor law. In January 2010, however,
Grane Healthcare Co. (―Grane‖) bought Laurel Crest, and
established a new entity, Cambria Care Center (―Cambria
Care‖), to serve as its operator.1 Because Grane and Cambria
Care (collectively, the ―Company‖) are private employers,
labor relations at the facility became subject to the National
Labor Relations Act (the ―NLRA‖ or ―Act‖), 29 U.S.C. § 151
et seq.
The Act‘s preamble expressly states Congress‘s
purpose in enacting a federal labor law.
It is hereby declared to be the
policy of the United States to
eliminate the causes of certain
1
Cambria Care is the fictitious business name of Ebensburg
Care Center LLC.
3
substantial obstructions to the free
flow of commerce and to mitigate
and eliminate these obstructions
when they have occurred by
encouraging the practice and
procedure of collective bargaining
and by protecting the exercise by
workers of full freedom of
association, self-organization, and
designation of representatives of
their own choosing, for the
purpose of negotiating the terms
and conditions of their
employment or other mutual aid
or protection.
Id. § 151. In service of these objectives, Congress included in
the NLRA a number of substantive provisions prohibiting
certain labor and management practices. Among other things,
the Act prohibits employers from refusing to bargain
collectively with their employees‘ representatives, id.
§ 158(a)(3), and from not hiring applicants based on their
union membership or activity, id. § 158(a)(5).
This case arises from a decision and order of the
National Labor Relations Board (the ―Board‖) concluding
that the Company, in connection with its takeover of Laurel
Crest, violated these provisions. The Company has petitioned
us for review, and the Board has cross-petitioned us for
enforcement, of this decision and order. For reasons to be
discussed, we deny the Company‘s petition for review and
grant the Board‘s cross-petition for enforcement.2
2
The Board had jurisdiction to hear this matter pursuant to 29
U.S.C. § 160(a). We have jurisdiction under 29 U.S.C.
4
I. Background
As noted, Laurel Crest‘s workforce was employed by
Cambria County, a public employer subject to Pennsylvania‘s
Public Employee Relations Act (the ―PERA‖), 43 Pa. Cons.
Stat. § 1101 et seq. Laurel Crest had two unions—one for
nonprofessional employees and one for nurses—certified
under the PERA. In 1971, the Pennsylvania Labor Relations
Board (the ―PLRB‖) certified Local Union No. 1305 (―Local
1305‖) as the exclusive union representative of nursing aides,
housekeepers, and other nonprofessional employees at Laurel
Crest after that unit of employees elected Local 1305 to
represent it. Fifteen years later, in 1986, the PLRB certified
the predecessor to the Service Employees International Union
(for convenience, the current union and its predecessor are
referred to as the ―SEIU‖) as the exclusive union
representative of nursing employees at Laurel Crest after that
unit of employees elected representation by the SEIU.
Following certification, Cambria County recognized each
union as the representative of its respective employee unit,
and continued to do so throughout its ownership of the
facility.
When Grane, which owns multiple nursing facilities
across Pennsylvania, attempted to purchase Laurel Crest on
two separate occasions—unsuccessfully in 2003 and then
successfully in 2009—the unions were by and large against
Grane taking over. In 2003, both unions publicly opposed the
sale and filed legal action intended to stop it. In 2009, Local
1305 again opposed the sale outright, and publicly took that
position, while the SEIU, though less absolute, engaged in a
§§ 160(e) and (f) to hear both the Company‘s petition for
review and the Board‘s cross-petition for enforcement.
5
series of rallies to raise awareness about concerns it had with
the sale.
Despite the opposition and expressions of concern, in
September 2009 Cambria County entered into an asset
purchase agreement with Grane. Following its execution,
Grane implemented transfer of the facility to Cambria Care.
That transfer was officially completed on January 1, 2010,
and the facility became known as Cambria Care. During that
acquisition period, from September 2009 through December
2009, Grane was responsible for all decisions relating to the
facility‘s operations, including its initial staffing. Leonard
Oddo, a Grane Vice President, interviewed and hired the top
administrator at Cambria Care, Owen Larkin. And, even after
hiring Larkin, Oddo and other Grane representatives
remained in charge of hiring Cambria Care‘s workforce.
A variety of labor-related decisions relevant to this
petition were made around this time. Prior to the
consummation of the transfer, most Laurel Crest employees
applied to work at Cambria Care, and the vast majority of
those applicants were hired. Grane, however, did not hire
four of the five Local 1305 officers who applied for positions.
It also refused to hire an SEIU-represented employee who had
participated in SEIU‘s public activities relating to the sale. In
addition, Local 1305 and the SEIU each requested that Grane
and Cambria Care recognize it as the exclusive bargaining
representative of its unit of employees. Both Grane and
Cambria Care refused to recognize or bargain with the
unions, and continued to do so until the time the Board issued
its decision and order.
Though Cambria Care became the facility‘s operator in
January 2010, Grane retained control over aspects of its
operations. Importantly, during the acquisition period Grane
and Cambria Care entered into a management agreement
6
designating Grane as the manager of the facility and Cambria
Care as its operator. The agreement—which was executed by
two individuals who were simultaneously officers for both
Grane and Cambria Care—was adopted without negotiation
and has not since been altered. Per that agreement, Grane‘s
employees maintained a significant, ongoing presence at the
facility, and continued to manage significant facets of the
facility‘s operations.
This close relationship between the companies was
also preserved by their ownership structure. Grane owns a
controlling stake, 99.5%, of Cambria Care, and the overlap of
the companies‘ officers is near complete. In addition, while
Larkin is nominally in charge of Cambria Care, he continues
to report to and can be terminated by Oddo. Indeed, a
healthcare license application filed with Pennsylvania on
Cambria Care‘s behalf attests that all of the nursing facilities
owned by Grane in Pennsylvania are under ―common
management, ownership, and/or control.‖
Shortly after Grane and Cambria Care took over of the
facility, Local 1305 and the SEIU filed unfair labor practice
charges against Grane and Cambria Care. Following its
investigation, the Board‘s General Counsel issued a
complaint alleging that Grane and Cambria Care were jointly
and severally liable for failing to recognize and bargain with
the unions in violation of NLRA § 8(a)(5) and refusing to hire
the four Local 1305 officers and one SEIU-represented
employee on the basis of their union membership or activities
in violation of NLRA § 8(a)(3).
After a six-day hearing, an administrative law judge
(―ALJ‖) issued a decision in this matter making the following
findings: (1) Grane and Cambria Care were a single employer
subject to the Act, and thus jointly and severally liable for
remedying unfair labor practices committed by either of
7
them; (2) the Company, as a single employer, violated the Act
by failing to recognize and bargain with Local 1305, though
not by refusing to recognize and bargain with the SEIU;3 and
(3) the Company, as a single employer, violated the Act by
not hiring the five employees due to antiunion animus. The
Board affirmed the ALJ‘s findings, adopted its decision, and
issued an order requiring the Company, among other things,
to recognize and bargain with Local 1305 and hire the five
employees to the positions for which they had applied.
II. Standard of Review
We afford considerable deference to the Board. The
Supreme Court has ―emphasized often that the [Board] has
the primary responsibility for developing and applying
national labor policy.‖ NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 786 (1990). ―We will [therefore] uphold a
Board rule as long as it is rational and consistent with the Act,
even if we would have formulated a different rule had we sat
on the Board.‖ Id. at 787 (citations omitted). ―Moreover, if
the Board‘s application of such a rational rule is supported by
substantial evidence on the record,‖ we will ―enforce the
Board‘s order.‖ Fall River Dyeing & Finishing Corp. v.
3
The ALJ determined that the Company did not violate the
Act by failing to recognize and bargain with the SEIU
because that union only was elected to meet with
management to discuss employment issues on behalf of
Laurel Crest nursing employees and not to bargain
collectively on their behalf. See 29 U.S.C. § 159(a) (defining
employee representatives as those selected by a majority of
employees ―for the purposes of collective bargaining‖). This
aspect of the ALJ‘s Board-adopted decision is not challenged
here.
8
NLRB, 482 U.S. 27, 42 (1987); see also NLRB v. Scott
Printing Corp., 612 F.2d 783, 787 (3d Cir. 1979); 29 U.S.C.
§ 160(e). In particular, we defer to the Board‘s credibility
determinations, and will reverse them only if they are
―‗inherently incredible or patently unreasonable.‘‖ St.
George Warehouse, Inc. v. NLRB, 420 F.3d 294, 298 (3d Cir.
2005) (quoting Atlantic Limousine, Inc. v. NLRB, 243 F.3d
711, 718–19 (3d Cir. 2001)).
III. Discussion
The Company raises three challenges to the Board‘s
decision and order in its petition.
(1) Substantial evidence does not support that Grane
and Cambria Care are a single employer.
(2) Use of the successorship doctrine to find that the
Company had a duty to bargain with Local 1305 is contrary to
the terms of the Act.
(3) Substantial evidence does not support that the
Company violated the Act by not hiring the five Laurel Crest
employees.
A. Single Employer Status
The Act prohibits covered employers, as that term is
defined by the NLRA, from committing unfair labor practices
such as refusing to bargain with their employees‘
representatives or not hiring an applicant based on his union
membership or activities. 29 U.S.C. §§ 152(2), 158(a). ―The
single employer doctrine is a creation of the Board which
allows it to treat two or more related enterprises as one
employer within the meaning of the [Act].‖ Carpenters Local
Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 504
9
(5th Cir. 1982). When the Board finds that two nominally
separate entities are a single employer, they are jointly and
severally liable for remedying unfair labor practices
committed by either of them. NLRB v. Browning-Ferris
Indus. of Pa., Inc., 691 F.2d 1117, 1122 (3d Cir. 1982); NLRB
v. Emsing’s Supermarket, Inc., 872 F.2d 1279, 1283 (7th Cir.
1989).
―Single employer status ultimately depends on all the
circumstances of the case and is characterized as an absence
of an arm‘s length relationship found among unintegrated
companies.‖ Browning-Ferris, 691 F.2d at 1122 (quotation
marks and citations omitted). The Board considers four
factors in determining whether separate entities are a single
employer: ―(1) functional integration of operations; (2)
centralized control of labor relations; (3) common
management; and (4) common ownership.‖ Id. No one
factor is controlling, although the first three factors,
particularly centralized control over labor relations, are
generally considered more compelling that the fourth. NLRB
v. Al Bryant, Inc., 711 F.2d 543, 551 (3d Cir. 1983).
The Company asks that we reverse the Board‘s
determination that Grane and Cambria Care are a single
employer. It does not challenge the Board‘s finding that
Grane controlled operations at the facility during the
acquisition period from September 2009 until December
2009, or that Grane and Cambria Care continued to have
common ownership, common management, and interrelated
operations following transfer of the facility into Cambria
Care‘s hands in January 2010. Nonetheless, it argues that we
must reverse the Board‘s ruling because the evidence in the
record demonstrates that Grane did not control labor relations
at the facility—arguably the most critical factor, Mercy Hosp.
of Buffalo, 336 N.L.R.B. 1282, 1284 (2001)—from the day
that the transfer occurred. We disagree.
10
Our biggest concern with the Company‘s argument is
that it is based on discredited testimony. Owen Larkin—who,
as noted, was Cambria Care‘s top administrator—testified
that he, and not Grane, controlled day-to-day operations at the
facility after the transfer. The Board found this testimony
self-serving and overwhelmed by other evidence in the
record. In particular, it found that Larkin‘s lack of knowledge
about much of the facility‘s operations—including important
aspects of the facility‘s financial dealings—undermined his
claim that he was in charge. The Board found it more likely
that Oddo, the Grane Vice President to whom Larkin
reported, actually made many, if not most, of the important
decisions at the facility.
We also do not deem as irrelevant evidence of Grane‘s
control during the acquisition period. Prior to the transfer
date, Grane made every important decision relating to
establishing operations at the facility. This included hiring
Cambria Care‘s workforce, determining initial salaries and
benefits, and putting in place a variety of other employment-
related policies, all of which continue to affect employees at
the facility. In fact, the no-hire decisions that are at issue in
this appeal were made by Grane representatives supervised by
Oddo during the period of acquisition.
There is, moreover, substantial evidence in the record
that Grane continued to control operations at Cambria Care
after the transfer date. As the ALJ explained,
Grane did not get Cambria Care
up and running and then walk
away, leaving Cambria Care as an
independently functioning
operation that would succeed or
fail on its own. To the contrary,
to begin with, Grane and Cambria
11
Care continue to have, as [the
Company] concedes[,] common
ownership and common
management at the executive
level, two factors the Board looks
to in determining single employer
analysis. But more than that, the
potential control of Cambria Care
that is a function of Grane‘s
common ownership and common
upper management with Cambria
Care is actualized every day by
the ubiquitous presence of Grane
personnel in the affairs of
Cambria Care—a state of affairs
deliberately established by Grane
when it set up Cambria Care‘s
operations in the fall and winter of
2009.
Grane Healthcare Co., 357 NLRB No. 123, 2011 WL
6002197, at *52 (Nov. 30, 2011) (citation omitted). During
the acquisition period, when Grane‘s control was complete, it
took specific actions—including, as noted, putting in place
the management agreement between Grane and Cambria
Care—to ensure its influence would continue after the
transfer date.
The Board‘s determination that Grane and Cambria
Care are a single employer was based on detailed factual
findings relating to each of the four factors normally
considered to determine that status. Though we do not
exhaustively recite those findings here, they describe two
deeply integrated companies with centralized control
emanating from Grane. We are not persuaded by the
12
Company‘s contention that the Board‘s single-employer
decision fails the substantial evidence test.
B. Duty to Bargain
The Board concluded that the Company, as a single
employer, violated § 8(a)(5) of the Act by failing to recognize
and bargain with Local 1305. That section makes it ―an
unfair labor practice for an employer . . . to refuse to bargain
collectively with the representatives of his employees.‖ 29
U.S.C. § 158(a)(5). In order to be an employee representative
entitled to bargain with an employer, a union or other entity
must have the support of a majority of a properly defined unit
of employees.4 Id. § 159(a). To promote stability, the Board
has created a number of doctrines whereby majority support
is presumed to exist.5
The Company challenges the Board‘s use of one of
these doctrines, successorship, to find that it had a duty to
4
Majority support is generally established ―by one of two
methods: [1] [Board] certification pursuant to an election or
[2] voluntary recognition of the union by the employer.‖
Lincoln Park Zoological Soc’y v. NLRB, 116 F.3d 216, 219
(7th Cir. 1997) (citing Exxel/Atmos, Inc. v. NLRB, 28 F.3d
1243, 1246 (D.C. Cir. 1994); NLRB v. Lyon & Ryan Ford,
Inc., 647 F.2d 745, 750 (7th Cir. 1981)).
5
For example, there is an irrebuttable presumption of
majority support during both the first year after certification
and the first three years of a collective-bargaining agreement.
Levitz Furniture Co., 333 N.L.R.B. 717, 720 n.17 (2001). At
other times, that presumption is rebuttable by proof of loss of
majority support. Id. at 720.
13
bargain with Local 1305. Broadly speaking, under this
doctrine ―[a] new employer has a duty . . . to bargain with the
incumbent union that represented the predecessor‘s
employees when there is a ‗substantial continuity‘ between
the predecessor and successor enterprises.‖ Chester ex rel.
NLRB v. Grane Healthcare Co., 666 F.3d 87, 100 (3d Cir.
2011) (quoting Fall River, 482 U.S. at 43). The Company
does not contest the presence of the requisite substantial
continuity, which is a fact-intensive inquiry. Instead, it
argues that, as a matter of law, the successorship doctrine
cannot be applied where the predecessor employer is a state
(or political subdivision thereof) not subject to the Act.
According to the Company, because Cambria County did not
have a legal obligation under the NLRA to bargain with Local
1305 when it controlled the facility, the Company could not
inherit that obligation when it took control of the facility.
The Company misapprehends the issue. It is
indisputable that Cambria County, as a political subdivision
of Pennsylvania, was not covered by the NLRA. 29 U.S.C.
§ 152(2). Whether it was subject to the Act when it operated
the facility, however, is not determinative. The Company is
not being held liable for violations of the Act committed by
Cambria County. It is being held liable for its refusal to
recognize and bargain with Local 1305.
The imposition of this latter liability is permissible
provided the majority support Local 1305 established under
Pennsylvania law could, consistent with the NLRA, establish
a presumption of majority support under federal law. In that
respect, there is nothing in the Act precluding the Board from
finding—as it did—that certification under Pennsylvania law
is sufficient. The Act provides that an employer must bargain
with a representative selected by a majority of employees to
do so on their behalf. See 29 U.S.C. §§ 158(a), 159(a). It is
14
silent, however, on the ways in which that majority support
can be established.
While there may be instances where the process of
establishing majority support under state law is so unreliable
that the Board‘s application of the successorship doctrine
would be irrational, this is not so here.6 To the contrary, there
is significant support for the Board‘s determination that
certification under the PERA provides substantially similar
protections for employers and employees as Board
certification under federal law. Both federal and
Pennsylvania law, for example, allow majority support to be
6
The Company also argues that application of the
successorship doctrine is inconsistent with the Supreme
Court‘s decision in Linden Lumber Div, Summer & Co. v.
NLRB, 419 U.S. 301 (1974). In that case, the Court upheld
the Board‘s determination that an employer is not legally
bound to recognize a union seeking initial representation on
the basis of authorization cards purporting to show majority
support. Id. at 309–10. According to the Company, Linden
stands for the proposition that when ―an employer is
presented with an initial demand for recognition by a labor
organization, it has a right to have the issue determined in a
Board election.‖ Appellants Br. at 14. We disagree. The
Court in Linden did not decide in the first instance what
procedures could be used to establish majority support, but
whether the Board abused its discretion in determining that
authorization cards could not be used. The Company has not
explained, and we do not see any reason, why it is irrational
for the Board to conclude that voting by authorization cards
was not reliable to establish majority support but certification
pursuant to Pennsylvania law was reliable.
15
established by board certification following an election,
compare Lincoln Park, 116 F.3d at 219 with 43 Pa. Cons.
Stat. § 1101.605, and allow for the filing of decertification
provisions in appropriate instances, compare 29 U.S.C.
159(e) with 43 Pa. Cons. Stat. § 1101.607. Indeed, due to
similarities between the laws, the Pennsylvania Supreme
Court often looks to the NLRA in interpreting the PERA. See
Commonwealth of Pa. Office of Admin. v. PLRB., 916 A.2d
541, 550 (Pa. 2007).7
The purpose of the successorship doctrine is to
encourage stability at a time of transition. As the Supreme
Court explained in approving the Board‘s creation of the
successorship doctrine,
[d]uring a transition between
employers, a union is in a
peculiarly vulnerable position. It
has no formal and established
bargaining relationship with the
new employer, is uncertain about
the new employer‘s plans, and
cannot be sure if or when the new
employer must bargain with it.
While being concerned with the
7
There is also no indication that Cambria County doubted
Local 1305 was an appropriate bargaining counterparty at any
time during its ownership of the facility. Following its
certification under Pennsylvania law, Local 1305 entered into
a series of collective-bargaining agreements with Cambria
County, the most recent of which expired in December 2008.
The parties attempted to negotiate a successor agreement but
were unsuccessful.
16
future of its members with the
new employer, the union also
must protect whatever rights still
exist for its members under the
collective-bargaining agreement
with the predecessor employer.
Accordingly, during this
unsettling transition period, the
union needs the presumptions of
majority status to which it is
entitled to safeguard its members‘
rights and to develop a
relationship with the successor.
Fall River, 482 U.S. at 39 (footnote omitted). We see no
reason why the Board‘s determination that this policy applies
equally to a public-to-private transition is irrational or
inconsistent with the Act. We therefore join other Courts of
Appeals in approving the application of the successorship
doctrine in this context. See Cmt’y Hosps. of Cent. Cal. v.
NLRB, 335 F.3d 1079, 1084 (D.C. Cir. 2003); Lincoln Park,
116 F.3d at 218–20.
C. Refusal to Hire
The Board also concluded that the Company, as a
single employer, engaged in an unfair labor practice by
refusing to hire the five former Laurel Crest employees.
Section 8(a)(3) of the Act provides in pertinent part that it is
―an unfair labor practice for an employer[,] . . . by
discrimination in regard to hire or tenure of employment[,]
. . . to encourage or discourage membership in any labor
organization.‖ 29 U.S.C. § 158(a)(3). As we have previously
explained,
17
[t]he employer‘s motivation in
[refusing to hire] the employee is
essential to finding a violation [of
this section], and the Board may
look to both direct and
circumstantial evidence to
determine whether an unlawful
motive exists. Relevant factors
include whether the employer
knew about the employee‘s union
activity; whether the employer
was hostile towards the union; the
timing of the employee‘s [no-hire
decision]; and the employer‘s
reasons (or lack thereof) for
[refusing to hire] the employee.
NLRB v. Omnitest Inspection Servs., Inc., 937 F.2d 112, 122
(3d Cir. 1991) (citations omitted). The Board found that the
Company‘s refusal to hire was motivated by the requisite
antiunion animus. That inference was primarily supported by
findings that (a) there was a gross disproportion between the
percentage of Local 1305 officers hired (20 percent) and the
percentage of other former employees hired (80 percent), and
(b) the Company‘s justifications for not hiring the five
employees were mere pretext.
The Company argues that the determination by the
Board that the Company violated § 8(a)(3) should be reversed
because the Board‘s finding that the Company‘s justifications
were mere pretext is not supported by substantial evidence.8
8
The Company also argues that the Board‘s determination
that the Grane representatives who made the no-hire decisions
knew of the employees‘ union activities was not supported by
18
More specifically, the Company maintains the Board erred in
discrediting the testimony of the two Grane representatives—
Beth Lengle and Vivian Andrascik—responsible for the no-
hire decisions. Because we believe these credibility
determinations were not patently unreasonable, we decline to
reverse the Board.
Both witnesses testified that their no-hire decisions
were based largely on discussions they had with other Laurel
Crest employees. Lengle testified that she decided not to hire
four of the employees on the basis of negative references she
received from Rebecca Nelen, Laurel Crest‘s director of
nursing, during in-depth discussions. Andrascik testified that
she declined to hire the fifth employee based largely on
negative references she received from that employee‘s former
co-worker, Nancy McMahon.
The Board determined that these proffered reasons
were pretextual because the testimony was contradicted by
other evidence and was not internally consistent. Nelen, for
example, had a different recollection of her interactions with
Lengle. She testified that she only spoke with Lengle briefly,
and that she did not recall having any conversations with
Lengle about individual employees and their job
performance. She also testified that because she had only
been director of nursing for about a year, and had been busy
with other matters during that time, she had not yet had time
to get to know the employees by the time the alleged
conversations were supposed to have taken place.
substantial evidence. We have reviewed the record and
consider it sufficient to support the Board‘s inference of
knowledge.
19
The Company contends that it was improper for the
Board to discredit the testimony of Lengle and Andrascik
because evidence in the record corroborates that testimony.
The Company points in particular to the fact that some of the
same criticisms Lengle and Andrascik cited as reasons for not
hiring the employees were contained in their personnel files.9
According to the Company, because Lengle and Andrascik
did not review these files prior to making the relevant
employment decisions, they must have been recounting
information provided to them by Nelen and McMahon. This
corroboration, the Company suggests, undermines fatally the
Board‘s finding that Lengle‘s and Andrascik‘s testimony was
not credible.
That some evidence corroborates a witness‘s testimony
while other evidence contradicts it, however, does not make
the Board‘s determination to discredit that testimony patently
unreasonable. We are not charged with reweighing the
evidence in this matter and making an independent
determination as to whether these witnesses were credible.
The Board considered this potentially corroborating evidence,
and decided it was insufficient to render Lengle‘s and
Andrascik‘s testimony credible. In particular, the Board
noted that these witnesses, consistent with the view that the
9
The Company also objects to the discrediting of Lengle‘s
testimony on the ground that Nelen only said she did not
recall any meetings, not that they did not occur, and that,
when pressed, Nelen admitted she may have spoken with
Lengle. Witnesses, however, are often reticent to speak in
absolutes when testifying under oath. As the Board noted, the
fact that Nelen took care to correct her testimony to ensure
she was not perjuring herself hardly requires a finding by the
Board that her testimony was untrustworthy.
20
no-hire justifications were pretextual, could have consulted
the personnel files after making the no-hire decisions but
prior to testifying. We do not consider this rationale
unreasonable, and thus do not disturb it.
* * * * *
We summarize our holdings.
1. The Board‘s determination that Grane and Cambria
Care are a single employer, and thus jointly and severally
liable for violations of the NLRA committed by either of
them, is supported by substantial evidence.
2. The Board acted consistently with the NLRA in
applying the successorship doctrine to find that the Company
had a duty to bargain with Local 1305.
3. The Board‘s ruling that the Company violated the
NLRA by refusing to hire five former Laurel Crest employees
is supported by substantial evidence.
We, therefore, deny the Company‘s petition for review
and grant the Board‘s cross-petition for enforcement of its
decision and order.
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