Laurel Baye Healthcare of Lake Lanier, LLC v. National Labor Relations Board , 209 F. App'x 345 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1171
LAUREL BAYE HEALTHCARE OF LAKE LANIER, LLC,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
UNITED FOOD AND COMMERCIAL WORKERS, LOCAL No.
1996,
Intervenor.
No. 06-1237
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
LAUREL BAYE HEALTHCARE OF LAKE LANIER, LLC,
Respondent.
On Petition for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (10-RC-15475; 10-CA-
35752)
Argued: September 19, 2006 Decided: December 15, 2006
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.
ARGUED: Clifford H. Nelson, Jr., CONSTANGY, BROOKS & SMITH,
Atlanta, Georgia, for Laurel Baye Healthcare, LLC, of Lake Lanier.
Jewel Lynn Fox, NATIONAL LABOR RELATIONS BOARD, Office of the
General Counsel, Washington, D.C., for the Board. ON BRIEF: Leigh
E. Tyson, CONSTANGY, BROOKS & SMITH, Atlanta, Georgia, for Laurel
Baye Healthcare, LLC, of Lake Lanier. Ronald Meisburg, General
Counsel, John E. Higgins, Jr., Deputy General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Meredith Jason, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Office of the General Counsel,
Washington, D.C., for the Board. James D. Fagan, Jr., STANFORD
FAGAN, L.L.C., Atlanta, Georgia, for Intervenor United Food and
Commercial Workers Union Local 1996.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Laurel Baye Healthcare (“Laurel Baye”) petitions this court
for review of the December 28, 2005, Decision and Order of the
National Labor Relations Board (the “Board”), directing Laurel Baye
to bargain with the United Food and Commercial Workers Union, Local
1996 (“Local 1996”) and determining that Laurel Baye violated
§ 8(a)(1) and § 8(a)(5) of the National Labor Relations Act, see 29
U.S.C.A. § 158(a)(1), (3) (West 1998), by failing to provide
information and bargain as ordered. The Board cross petitions for
enforcement of its Decision and Order. We deny Laurel Baye’s
petition for review and grant the Board’s cross-petition for
enforcement.
I.
Laurel Baye operates a nursing care facility for geriatric and
disabled residents in Buford, Georgia. On August 31, 2004, Local
1996 filed a petition to represent a proposed collective bargaining
unit, set by the Regional Director as “[a]ll full-time and part-
time service and maintenance employees, [Certified Nursing
Assistants (“CNA’s”)], restorative aids, activity assistants,
medical records clerks, central supply clerks, and unit
secretaries” at the facility. J.A. 518. The election was held on
November 26, 2004. Fifty employees were eligible to vote. Thirty-
two votes were cast for and eight votes were cast against Local
1996. Ten eligible employees did not vote.
3
On December 3, 2004, Laurel Baye filed objections to the
election with the Board, asserting that the election was invalid
because agents and other supporters of Local 1996 had engaged in
pre-election activities that destroyed the laboratory conditions
necessary for a fair and free election. Following an evidentiary
hearing, the ALJ issued a report and recommendation that Laurel
Baye’s objections be overruled in their entirety. Laurel Baye
filed exceptions to the hearing officer’s decision and, on June 27,
2005, the Board issued a Decision and Certification of
Representative, adopting the ALJ’s findings and recommendations and
certifying Local 1996 as the exclusive collective bargaining
representative for the unit.
In order to obtain further review of the certification
decision, Laurel Baye thereafter refused to recognize and bargain
with Local 1996, or to furnish information requested by Local 1996
in its role as bargaining representative, prompting Local 1996 to
file an unfair labor practice charge with the Board. The Board’s
General Counsel issued a complaint against Laurel Baye, alleging
violations of § 8(a)(5) and § 8(a)(1) of the Act.1
1
Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer “to refuse to bargain collectively with the
representatives of his employees.” 29 U.S.C.A. § 158(a)(5).
Section 8(a)(1) of the Act makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in the
exercise of [their protected] rights.” 29 U.S.C.A. § 158(a)(1).
Because an employer cannot obtain direct review of a Board’s
certification, a refusal to bargain is the “proper path to judicial
review of the Board’s election decision.” Rosslyn Concrete Constr.
4
In response, Laurel Baye admitted its refusal to bargain and
to furnish information, but again contested the validity of Local
1996’s certification based on its earlier objections. In response
to the General Counsel’s motion for summary judgment, Laurel Baye
asserted an additional claim that, because Local 1996 had
disaffiliated from the AFL-CIO on July 29, 2005, after the
election, an evidentiary hearing should be held to explore the
continued validity of Local 1996’s certification as the employees’
bargaining representative. The Board granted the General Counsel’s
motion for summary judgment, ordering Laurel Baye to bargain with
Local 1996 and to furnish the requested information. Laurel Baye
then filed this petition for review, and the Board filed the cross
petition for enforcement.
II.
We begin with Laurel Baye’s challenge to the validity of the
election based upon the alleged destruction of laboratory
conditions by agents and other supporters of Local 1996. It is
well settled that the Board is vested “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” through an election. NLRB v. A.J. Tower Co., 329 U.S.
324, 330 (1946); see NLRB v. Kentucky Tennessee Clay Co., 295 F.3d
Co. v. NLRB, 713 F.2d 61, 63 n.1 (4th Cir. 1983).
5
436, 441 (4th Cir. 2002). “The results of an NLRB-supervised
representative election are presumptively valid, and we must uphold
findings and conclusions of the Board so long as the decision is
reasonable and based upon substantial evidence in the record
considered as a whole.” Kentucky Tennessee, 295 F.3d at 441
(internal quotation marks, citation, and alterations omitted).
However, “because the employees’ right to exercise a fair and
free choice in a representation election is the mandate, elections
must be conducted in laboratory conditions, free from behavior that
improperly influences the outcome.” Id. (internal quotation marks
and citations omitted); see also NLRB v. Georgetown Dress Corp.,
537 F.2d 1239, 1242 (4th Cir. 1976). The employer may rebut the
presumption that the election is valid, but only if it presents
“specific evidence not only that the alleged acts of interference
occurred but also that such acts sufficiently inhibited the free
choice of employees as to affect materially the results of the
election.” Overnite Transp. Co. v. NLRB, 294 F.3d 615, 623 (4th
Cir. 2002) (internal quotation marks omitted); see also NLRB v.
Urban Tel. Corp., 499 F.2d 239, 242 (7th Cir. 1974) (“For conduct
to warrant setting aside an election, not only must the conduct be
coercive, but it must be so related to the election as to have had
a probable effect upon the employees’ actions at the polls.”).
In evaluating a challenge to the “laboratory conditions” of an
election, “the source of the [coercive or threatening] behavior is
6
an important consideration.” Kentucky Tennessee, 295 F.3d at 441.
“[A]n election will be set aside for improper conduct by a union or
union agents when threats, acts of coercion, or other improprieties
occurred and ‘materially affected the election results.’” Id. at
442 (quoting NLRB v. Herbert Halperin Distr. Corp., 826 F.2d 287,
290 (4th Cir. 1987)). But an election will be set aside for third-
party conduct “only if the election was held in a general
atmosphere of confusion, violence, and threats of violence, such as
might reasonably be expected to generate anxiety and fear of
reprisal, to render impossible a rational uncoerced expression of
choice as to bargaining representation.” Id. (internal quotation
marks omitted).
A.
In its challenge to the election conditions, Laurel Baye
claims that two of its former employees, CNA Patricia Cunningham
and CNA Melissa Lott, were acting as union agents during the
critical pre-election time period and, in that capacity, directly
threatened three management employees and one unit employee and
generally engaged in threatening speech in the workplace.
According to Laurel Baye, the actions of Lott and Cunningham,
exacerbated by three additional “threatening” incidents on the part
of other persons, destroyed the laboratory conditions to such a
degree that it interfered with the unit employees’ ability to make
a free and reasoned choice in the election.
7
We begin with the alleged conduct of Lott and Cunningham.
Approximately two weeks after Local 1996 filed its petition for
representation, Cunningham was suspended from employment pending an
investigation of insubordination, and Lott was terminated from
employment. Between ten and thirty minutes after her termination,
Lott called Kristal Randolph in the Human Resources office and
requested her final paycheck.2 Randolph could hear Cunningham
speaking in the background. At some point during the call, the
conversation turned to Courtney Bell, Laurel Baye’s Human Resources
Coordinator. Randolph testified that Lott and Cunningham “made
threats to [Bell],” claiming that “they were wrongfully terminated,
. . . that they knew where [Bell’s] grandmother lived . . . [and]
mom lived, and that they would come after her,” or send someone
else “after her, too.” J.A. 99. In addition, Cunningham called
out to Randolph, “this is Patricia, let her know that I’m going to
get her,” J.A. 99, and “tell that bitch that I’m going to fuck her
up.” J.A. 100. The women also mentioned Charles James, the
Assistant Director of Nursing, and Nancy Levin, the Director of
Nursing, telling Randolph “they’re going to get them, too.” J.A.
101. The telephone call lasted approximately five minutes.
2
Randolph was a member of management until mid to late
September, when her position changed to Medical Records Clerk,
which is a unit position. Although it is unclear whether she was
a unit employee or management employee on the day of the call, she
was a unit employee at the time of the election.
8
Randolph immediately informed Bell and other members of
management about the telephone call and, after an unsuccessful
attempt to file a report at the police station, Bell called the
police and her parents from a phone at the nurse’s station and
reported the threats. Several unit employees in the area were
close enough to overhear Bell reporting the substance of the
telephone calls and were aware that a police officer came to the
facility to prepare a report of the incident. Cunningham was
terminated the following day. There is no evidence that Local 1996
or the upcoming election was mentioned in conjunction with this
incident. However, Local 1996 officials did point to the
terminations of Lott, Cunningham, and three additional employees as
examples of employer action necessitating union representation in
the Laurel Baye workforce.
Laurel Baye also presented testimony that, prior to their
terminations, Lott and Cunningham wore Union insignia, told
employees that “either you’re with us or you’re against us” when
walking in the halls, J.A. 144, and were overheard commenting, when
discussing word of an anonymous call made to a management employee,
“now things are getting started.” J.A. 229. There was also
testimony that Lott or Cunningham called CNA Alicia Earls, who is
related to Lott, a “bitch” and “Uncle Tom” upon discovering that
Earls, in the course of a routine breakfast pick-up, returned with
breakfast for supervisors as well as unit employees. Earls
9
testified at the hearing but was not questioned about this
incident. Although she testified that she did not vote in the
election, she also testified that she was not working that day.
She did not testify that she refrained from voting because of this
name-calling incident.
The threatening behavior of Lott and Cunningham, Laurel Baye
argues, was exacerbated by three additional incidents which
occurred during the pre-election time period. First, in September
2004, Robert White, an outside contractor who handled housekeeping
in the Laurel Baye facility, informed management that he received
a threatening telephone call at his home from an anonymous caller
claiming to be associated with the union. Apparently White had
posted a sign prohibiting solicitation of housekeeping employees
during working hours. White did not testify at the hearing, but
Bell testified that White mentioned an anonymous caller told him
“that they didn’t know why he was getting involved, that the
situation did not involve him, . . . and that he just needed to
stay out of it.” J.A. 293. Alicia Earls also testified that White
told her he had received a threatening call, but provided no
details about the call.
Second, Brenda Walker, a management employee in staff
development, testified that, approximately one week before the
election, she told a group of employees that a union had not
delivered on its promises to her family members and emphasized to
10
the employees the importance of being educated about the union. A
few days later, Walker received a telephone call from an anonymous
caller who asked her, “[W]ho told you to make that speech?” Walker
was warned that, “[I]f you know what’s good for you, you’ll mind
your own business.” J.A. 139. Walker hung up on the caller and
reported the threat to the police.
In the final incident, Activities Director Wendy Schrilla
testified that CNA Deborah Cuffy reported that a union
representative called her at home and eventually came to her home
around 9 p.m. on a Sunday night. Cuffy did not testify, but
Schrilla testified that Cuffy said she told the union
representative she was not interested, and, when they persisted,
Cuffy’s husband informed Cuffy “that was enough of this.” J.A.
243. Cuffy resigned her employment after this incident, but
Schrilla testified that Cuffy did not provide a reason to her.
Union organizer Taylor admitted that he visited Cuffy at her home,
but there was no evidence that Taylor or anyone else engaged in
threatening or coercive behavior towards Cuffy or that Cuffy quit
her job because of union harassment.
B.
To evaluate whether an agency relationship exists between a
company employee and a union, we apply the general common law of
agency as developed by the Act. See Kentucky Tennessee, 295 F.3d
at 442. “‘[T]he question of whether the specific acts performed
11
were actually authorized or subsequently ratified shall not be
controlling.’” Id. (quoting Georgetown Dress, 537 F.2d at 1244).
“Rather, ‘[t]he final inquiry is always whether the amount of
association between the [u]nion and the [employee organizers] is
significant enough to justify charging the [u]nion with the
conduct.’” Id. (quoting PPG Indus., Inc. v. NLRB, 671 F.2d 817,
822 n.8 (4th Cir. 1982)).
In an affidavit signed October 7, 2004, Eric Taylor, Local
1996’s Organizing Director, stated that “Cunningham, Lott, and [one
additional person] were our ‘Committee’ and attended every meeting”
and that “[o]ther employees clearly saw these employees as leaders
of the [u]nion campaign.” J.A. 375. At the hearing, however,
Taylor recanted, denying that Lott and Cunningham were agents of
Local 1996 or leaders of the campaign, and referring to them as
simply “key employees that attended some meetings” in the
organizing effort. J.A. 93.
The ALJ recognized that “Taylor had previously described Lott
and Cunningham as leaders of the organizing campaign and on the
[Local 1996’s] Committee,” but found “no evidence that other
employees regarded Lott and Cunningham as the leaders of the
organizing campaign or that [Local 1996] ever held them out to
employees as its agents.” J.A. 469. The ALJ additionally
concluded that the alleged threats did not justify setting aside
the election.
12
On review, the Board affirmed the ALJ’s findings and
conclusions. With regard to the agency question, the Board also
concluded that Laurel Baye had failed to establish that Lott and
Cunningham were actual or apparent agents of Local 1996. The Board
found that neither the threats by Lott and Cunningham, nor the
anonymous threats to Brenda Walker and Robert White, rose “to the
level of objectionable conduct because the Employer failed to show
that the threats individually or cumulatively created a general
atmosphere of fear and coercion.” J.A. 518.
Having reviewed the record and the findings of the Board, we
find it unnecessary to consider the import of Taylor’s troublesome
and at least facially contradictory assertions regarding the status
of Lott and Cunningham, or the question of whether and under what
circumstances Lott and Cunningham crossed over from being
disgruntled former employees to union agents. Rather, we must
uphold the Board’s findings and conclusions because, even if Lott
and Cunningham could be considered agents of Local 1996 based upon
their pre-termination activities or the union’s later ratification
of their actions, the alleged coercive and threatening conduct
relied upon by Laurel Baye is woefully insufficient to prove that
“the free exchange of ideas on unionization among the employees”
was stifled “so as to materially affect the election results.”
13
Kentucky Tennessee, 295 F.3d at 445 (internal quotation marks and
alteration omitted).3
As an initial premise, we note that the vast majority of the
challenged conduct on the part of Lott and Cunningham consisted of
relatively vague threats made against management officials in a
single, five-minute telephone call placed within thirty minutes of
disciplinary action being taken against them. No mention was made
of the union or the upcoming election at the time, and the
telephone call preceded the election by more than two months.
Although there is evidence that Bell repeated the threat in an area
where unit employees may have overheard it, there is no evidence
that Lott or Cunningham repeated the threat against management to
any unit employee or that they directed any threat to a unit
employee. In short, the evidence reveals that the telephone call
and the threats against management officials arose out of an
entirely personal dispute between Lott and Cunningham, on the one
hand, and management officials, on the other, resulting from
adverse employment actions taken against Lott and Cunningham. And,
there is no evidence that the threats impacted the election
results, which the union won by a four-to-one margin.
3
Although Laurel Baye relies upon all incidents in support of
its invalidation claim, counsel for Laurel Baye agreed at oral
argument that they cannot prevail under the third-party standard
and, therefore, must establish that Cunningham and Lott were agents
to set aside the election results.
14
The incident between Lott, Cunningham, and Earls was likewise
isolated in nature and, given Earls’ familial relationship to Lott,
could easily be viewed as more personal in nature than related to
the union. Indeed, there is no evidence as to whether Earls
actually supported or opposed the union; rather, Cunningham and
Lott were simply angry because Earls had brought breakfast to
unnamed supervisors. We frankly do not construe the “with us or
without us” comments as threatening either, but even viewed in
their most damaging light, the sole evidence of comments directed
at unit employees collectively amounts to little more than name-
calling and innocuous posturing. More importantly, there is no
evidence that Earls or any other unit employee abstained from
voting or voted differently because of these incidents.
The additional incidents pointed to by Laurel Baye, even
considered cumulatively with the telephone call, likewise fail to
render invalidation of the election appropriate, as none rise to
the level of threatening or coercive behavior sufficient to inhibit
the electorate’s fair and free choice at the election. The
telephone calls to Walker and White, a management employee and
outside contractor, respectively, were isolated incidents and
anonymously made. There is no evidence that they were placed by
Lott or Cunningham, or any other union official. Evidence of
dissemination of these alleged “threats” was limited, and there is
no evidence that any unit employee abstained from voting or voted
15
against unionization as a result. Similarly, although there is
evidence that Cuffy quit her job after a union official visited her
home, there is no evidence that her decision to quit was motivated
by behavior that she viewed to be threatening.
For the foregoing reasons, we conclude that Laurel Baye failed
to rebut the presumption that the election was valid and uphold the
Board’s rejection of Laurel Baye’s challenge to the election in
this proceeding.
III.
We turn briefly to consider Laurel Baye’s claim that it may be
justified in refusing to bargain with Local 1996 because, on
August 1, 2005, after the Board certified Local 1996 as the
exclusive bargaining representative for the unit, it disaffiliated
from the AFL-CIO and joined with other local unions to form the
organization “Change to Win.” Laurel Baye contends that the Change
to Win union is a materially different labor organization from the
AFL-CIO and the Board erred in refusing to hold an evidentiary
hearing to explore the issue of whether the current labor
organization is the same organization approved by the electorate
and certified by the Board in the underlying representation case.
The Board ruled that a hearing was unnecessary because Local
1996's disaffiliation from the AFL-CIO, without more, is
insufficient to raise a genuine issue as to the continuity of the
identity of the certified bargaining representative, see NLRB v.
16
Harris-Woodson Co., 179 F.2d 720, 722-23 (4th Cir. 1950) (noting
that the employees’ choice of a local union as their bargaining
representative “was not affected by its change either of name or
affiliation”); see also NLRB v. Wayerhaeuser Co., 276 F.2d 865, 873
(7th Cir. 1960) (holding that “[a] mere change of name or
disaffiliation with the AFL-CIO is not sufficient” to raise doubts
about the identity of a certified bargaining representative), and
because, in any event, the disaffiliation came after Laurel Baye
refused to bargain as ordered.
On appeal, Laurel Baye has pointed to no authority in support
of its position, nor any argument beyond mere disaffiliation as the
basis for its request. Accordingly, we find no error in the
Board’s rejection of Laurel Baye’s request.
IV.
For the foregoing reasons, we deny Laurel Baye’s petition for
review and grant the Board’s cross-application for enforcement.
PETITION FOR REVIEW DENIED AND
CROSS-APPLICATION FOR ENFORCEMENT
GRANTED
17