National Labor Relations Board v. Community Medical Center, Inc. , 446 F. App'x 463 ( 2011 )


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  •                                              NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 10-3596/3689
    NATIONAL LABOR RELATIONS BOARD,
    Petitioner/Cross-Respondent
    in 10-3596
    v.
    COMMUNITY MEDICAL CENTER, INC.,
    Respondent/Cross-Petitioner
    in 10-3689
    On Application for Enforcement of a
    Decision and Order of the
    National Labor Relations Board
    (Agency Nos. 4CA-34888; 4-CA-35025; 4-RC-21199)
    Submitted under Third Circuit LAR 34.1(a)
    on March 18, 2011
    Before: BARRY, CHAGARES and ROTH, Circuit Judges
    (Opinion filed: August 3, 2011)
    OPINION
    ROTH, Circuit Judge:
    I. Introduction
    Community Medical Center, Inc. (CMC) petitions for review of the National
    Labor Relations Board’s (Board) decision finding that CMC engaged in unfair labor
    practices that interfered with a union election process, setting aside the election results,
    and ordering a new election. CMC contends that the Board misinterpreted its shared
    governance initiative as an attempt to dissuade nurses from unionizing and erred in
    requiring CMC to make its parking garage available to union organizers. The Board has
    cross-petitioned for enforcement of its decision.
    II. Background1
    CMC is a nonprofit that operates a 600-bed acute care hospital and related
    facilities in Toms River, New Jersey, and employs more than 800 registered nurses. In
    March 2006, the New York State Nurses Association (NYSNA or the union), started a
    campaign to organize nurses at CMC, which concluded with an election in January 2007.
    The campaign was run by an organizing committee that included several paid union
    organizers as well as CMC nurses. CMC opposed the organizing campaign and hired an
    outside consultant to assist with the opposition to the union’s campaign. Additionally, in
    1
    Because we write only for the parties, we assume familiarity with the facts of this
    case, which are set out in detail in the decision of the Board, and only briefly summarize
    them here. See Cmty. Med. Ctr. & N.Y. State Nurses Ass’n, 
    354 NLRB No. 26
    , 
    2009 WL 1569250
     (2009).
    2
    July 2006, CMC offered jobs to two of NYSNA’s paid organizers working on the
    campaign at CMC: Keith Peraino and Susan Rosen. After being hired by CMC, Rosen
    and Peraino were involved in CMC’s opposition to the organizing campaign.
    This case arises from two incidents during NYSNA’s 2006-2007 organizing
    campaign. First, CMC initiated a shared governance program during the campaign.
    Shared governance is an approach to management that emphasizes “shared decision-
    making based on the principles of partnership, equity, accountability, and ownership at
    the point of service.” According to a CMC nurse manager, shared governance would
    increase the role of nurses in administrative decisions and enable them to do some self-
    scheduling. CMC began working on shared governance in August 2006 and formally
    presented it to its nurses in a meeting on October 18, 2006. In July 2006, while he was
    still working for NYSNA, Peraino told the union organizing committee that the shared
    governance program was the only strategy that CMC could use to counter the union’s
    organizing campaign because it would provide nurses with more input into their working
    conditions and a way of organizing without a union. After switching sides, both Rosen
    and Peraino actively promoted shared governance to CMC nurses and opposed the
    organizing campaign by meeting with nurses, preparing handouts and literature opposing
    unionization, and training CMC’s management. Rosen, Peraino and other CMC
    managers also approached two nurses supporting the union’s organizing campaign and
    offered them positions on the new, shared governance committee.
    CMC contends that its emphasis on shared governance was not an entirely new
    development. In order to obtain a prestigious “magnet” designation in 2003, CMC
    3
    implemented the “Councilor” program, which created four councils, including nurses, to
    discuss CMC policies and, to a lesser extent, working conditions.2 CMC presented a
    treatise on shared governance that recognized that the Councilor program was a form of
    shared governance. CMC further explained that it combined two of its nursing councils
    in September 2006 to form a single, Nursing Practice Council in order to implement
    shared governance principles. According to CMC, shared governance programs were
    necessary to obtain the magnet designation in 2003, and its shared governance initiative
    in 2006 was simply a refinement of the Councilor model designed to ensure that CMC
    would be re-designated as a magnet center in 2007. NYSNA and the NLRB point out
    that the magnet program does not require implementation of shared governance and that
    this term was not used in connection with CMC’s initial application for magnet status in
    2002-2003.
    The second incident concerns CMC’s decision to prevent union organizers from
    parking in its parking garage for two days during the union’s organizing campaign. In
    the months following the start of the campaign in March 2006, the organizers had parked
    in the garage on numerous occasions without incident. However, on August 30 and 31,
    2006 – the day that the union filed its election petition and the following day – two union
    organizers were identified by CMC management and then, in the presence of CMC
    2
    The magnet designation is issued by the American Nurses Credentialing Center
    (ANCC). The designation indicates that the hospital provides high-quality nursing care
    and lasts for four years, at which point CMC must apply to renew the designation. (J.A.
    4, 121, 143, 337-40.)
    4
    nurses, approached by CMC security guards and directed to remove their cars from the
    garage.
    NYSNA filed an election petition on August 30, 2006. In September and
    November of 2006, the union filed complaints with the NLRB alleging unfair labor
    practices by CMC. The election was held on January 11, 2007, and the union lost by a
    vote of 316 to 407. An Administrative Law Judge (ALJ) for the NLRB held a hearing on
    the union’s complaints and found that CMC promoted and implemented shared
    governance “with the express purpose of attempting to persuade and discourage the
    nurses from selecting the Union as their collective-bargaining representative,” and that
    CMC improperly prevented union organizers from parking in its parking garage. The
    ALJ concluded that these were unfair labor practices which “interfere[d] with the
    exercise of a free and untrammeled choice in an election,” and therefore set aside the
    results of the union election, ordered a new election, and ordered CMC to cease and
    desist from the unfair labor practices. CMC appealed the decision to the Board, which
    adopted, with slight modifications, the ALJ’s findings on shared governance and access
    to the parking garage and affirmed its order of a new election.3 The Board petitioned this
    Court for enforcement of its order and CMC petitioned for review of the Board’s
    decision.
    3
    The Board initially remanded the case to the ALJ so that he could make more
    detailed findings regarding shared governance. The Board’s decision was initially made
    by only two members of the Board, but was reaffirmed by three members after the
    Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 
    130 S. Ct. 2635
     (2010).
    5
    III. Jurisdiction
    We have jurisdiction to review the Board’s finding of unfair labor practices
    pursuant to 
    29 U.S.C. § 160
    (e)-(f). However, we do not have jurisdiction to review the
    Board’s order of a new election, because that order is not final until the new election is
    complete. See Indiana Hosp., Inc. v. NLRB, 
    10 F.3d 151
    , 154 & n.1 (3d Cir. 1993);
    Graham Architectural Products Corp. v. NLRB, 
    697 F.2d 534
    , 543 (3d Cir. 1983).
    Accordingly, we lack jurisdiction to consider CMC’s argument that its preventing of
    NYSNA’s organizers from parking in its garage for only two days only minimally
    affected the union’s organizing campaign and does not justify the Board’s order of a new
    election.4 We therefore dismiss without prejudice that portion of CMC’s petition seeking
    vacatur of the Board’s order of a new election. See Graham Architectural Products
    Corp., 
    697 F.2d at 543
    .
    IV. Discussion
    The National Labor Relations Act (the Act) guarantees employees the “right to
    self-organization, to form, join, or assist labor organizations,” 
    29 U.S.C. § 157
    , and
    makes it a prohibited “unfair labor practice” for an employer “to interfere with, restrain,
    or coerce employees in the exercise of” these rights. 
    Id.
     § 158(a)(1). The Act empowers
    the NLRB to determine whether an employer has engaged in an unfair labor practice and
    4
    CMC also argues that preventing the union organizers from parking in its garage
    was not an unfair labor practice because under Lechmere, Inc. v. NLRB, 
    502 U.S. 527
    ,
    534 (1992), it had the right to exclude union organizers from its property. We do not
    consider this argument because there is no evidence in the record that CMC raised this
    argument before the Board (J.A. 27, 48). See 
    29 U.S.C. § 160
    (e); 
    29 C.F.R. § 102.46
    (b)(1)(i), (iv). CMC does not otherwise contest the Board’s conclusion that
    excluding the organizers from its parking garage was an unfair labor practice.
    6
    to impose appropriate remedies. 
    Id.
     § 160. We review the Board’s legal conclusions de
    novo and its findings of fact to determine if they are supported by substantial evidence.
    NLRB v. Prime Energy Ltd. P’ship, 
    224 F.3d 206
    , 208 (3d Cir. 2000). Because the Board
    has partially adopted the findings of the ALJ, we review the decisions of both the Board
    and the ALJ. Trafford Distrib. Ctr. v. NLRB, 
    478 F.3d 172
    , 179 (3d Cir. 2007).
    CMC does not dispute that promising to improve employment conditions in order
    to influence employees’ vote in a union election is an unfair labor practice under section
    8(a)(1) of the Act. See United Dairy Farmers Coop. Ass’n v. NLRB, 
    633 F.2d 1054
    , 1062
    (3d Cir. 1980). Instead, CMC argues that the ALJ incorrectly found that the purpose of
    the shared governance program was to influence the election by offering improved
    working conditions, rather than to ensure that CMC retained its magnet status. We
    disagree. Substantial evidence supports the ALJ’s conclusion that CMC promoted the
    shared governance program for the improper purpose of influencing the union election.5
    The ALJ therefore reasonably declined to credit CMC’s alternative explanation for its
    shared governance program and gave greater weight to the considerable evidence of
    improper motive. We will not disturb the ALJ’s reasonable credibility determinations
    and weighing of the evidence. See Citizens Publ’g and Printing Co. v. NLRB, 
    263 F.3d 5
    Peraino identified shared governance as the primary obstacle to unionization and
    then, upon switching sides and helping CMC oppose the organizing campaign, both he
    and Rosen became leading proponents of shared governance. CMC also approached the
    leading nurses supporting the union and offered them positions on its Nursing Practice
    Council, which was designed to promote shared governance. CMC’s promotion of
    shared governance shortly after the filing of the union election petition also suggests that
    it was in response to NYSNA’s organizing campaign.
    7
    224, 232 (3d Cir. 2001); ABC Trans-National Transp., Inc. v. NLRB, 
    642 F.2d 675
    , 685-
    86 (3d Cir. 1981).
    V. Conclusion
    For these reasons, we will deny the Community Medical Center’s petition for
    review except for the portion of the petition seeking vacatur of the order of a new
    election, which is dismissed. We will grant the Board’s petition for enforcement.
    8