NLRB v. AMFM of Summers Cnty

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 95-1323
AMFM OF SUMMERS COUNTY,
INCORPORATED,
Respondent.
AMFM OF SUMMERS COUNTY,
INCORPORATED,
Petitioner,
No. 95-1812
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
On Application for Enforcement and Cross-petition for Review of
an Order of the National Labor Relations Board.
(11-CA-15659)
Argued: March 4, 1996
Decided: June 20, 1996
Before MURNAGHAN and ERVIN, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.
_________________________________________________________________
Enforcement granted by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: George Jerald Oliver, SMITH, HELMS, MULLISS &
MOORE, L.L.P., Raleigh, North Carolina, for AMFM. Meredith L.
Jason, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for NLRB. ON BRIEF: Frederick L. Feinstein, General Coun-
sel, Linda Sher, Acting Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, Linda Dreeben,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for NLRB.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The National Labor Relations Board ("NLRB") filed an application
with this Court for enforcement of its order enjoining AMFM of Sum-
mers County, Inc. ("AMFM") from certain unfair labor practices and
directing a second union election. AMFM filed a cross-petition for
review. We find the order supported by substantial evidence and grant
enforcement.
I.
AMFM operates nursing facilities at nine locations in West Vir-
ginia, including a facility at Hinton, West Virginia in Summers
County. In February 1993, employees James Gill and Kay Fleshman,
both Licensed Practical Nurses ("nurses") at the Summers facility,
contacted the United Mine Workers to discuss union representation.
In April 1993 they contacted the United Steelworkers of America,
AFL-CIO ("the Union"), which eventually agreed to represent the
employees of AMFM in their organizational effort at the Summers
facility. On May 27, 1993, the Union sent a letter to AMFM identify-
2
ing 17 employees, including Gill and Fleshman, who were actively
engaged in a union campaign at the facility. On July 6 the Union filed
a petition seeking to represent employees at the Hinton facility. On
September 8, 1993, a secret ballot election at the Hinton facility
resulted in a vote of 39 for, and 48 against, Union representation.
The Union filed unfair labor practice charges on September 27,
1993, alleging that AMFM promoted nurses from the eligible voting
pool, disciplined Union activists, and intimidated employees in an
attempt to influence the outcome of the Union election. An Adminis-
trative Law Judge ("ALJ") issued an opinion in the Union's favor and
the NLRB adopted the ALJ's opinion and now seeks enforcement of
the order. AMFM subsequently filed a petition for review.
II.
Enforcement of NLRB orders is denied only when the reviewing
court is unable to "conscientiously find that evidence supporting that
decision is substantial, when viewed in the light that the record in its
entirety furnishes, including the body of evidence opposed to the
Board's view." Universal Camera Corp. v. NLRB , 340 U.S. 474, 488
(1951). For example, if the NLRB ignored material evidence or disre-
garded or eliminated evidence by simply discrediting an employer's
witnesses, enforcement may be denied. NLRB v. Huntington Hosp.,
Inc., 550 F.2d 921, 924 (4th Cir. 1977) (citing NLRB v. United Brass
Works, Inc., 287 F.2d 689, 691 (4th Cir. 1961)). But the reviewing
court is not to substitute its own choice for that of the NLRB, even
when the court might have drawn a different conclusion had it
decided the question de novo. Universal Camera, supra, at 488. We
are particularly reluctant to re-examine credibility determinations
made by the NLRB or an ALJ. See Benson Veneer Co. v. NLRB, 398
F.2d 998, 1000 (4th Cir. 1968). With these basic principles in mind
we turn to the specific findings of the NLRB.
A. PROMOTION OF THE LICENSED PRACTICAL NURSES.
AMFM promoted the nurses to supervisors on July 19 and granted
them a $.25 raise. Two days later, the nurses were informed by an
attorney for AMFM that they could not participate in Union activities.
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The NLRB found that AMFM's conduct violated 29 U.S.C.
§ 158(a)(1), which provides that it is an unfair labor practice "to inter-
fere with, restrain, or coerce employees in the exercise of the rights
[to organize a union]." An employer violates this section when its
conduct may reasonably tend to coerce or intimidate employees.
Standard-Coosa-Thatcher Carpet Yarn Division v. NLRB , 691 F.2d
1133, 1137 (4th Cir. 1982), cert. denied, 460 U.S. 1083 (1983) (citing
NLRB v. P.B. & S. Chemical Co., 567 F.2d 1263, 1267 (4th Cir.
1977)). Promotion of employees to supervisory positions may be
intended to curtail a union organizational campaign. See Hospitality
Motor Inn, Inc., 667 F.2d 562 (6th Cir. 1982), cert. denied 459 U.S.
969 (1982). We have held that a company policy that had been
planned for a long time can constitute an unfair labor practice if its
implementation is accelerated to hinder union activities. J.P. Stevens
& Co. v. NLRB, 668 F.2d 767, 771 (4th Cir. 1982), vacated on other
grounds 458 U.S. 1118 (1982); NLRB v. Preston Feed Corp., 309
F.2d 346 (4th Cir. 1962). It is also an unfair labor practice to improp-
erly inform non-supervisory employees they cannot engage in union
activities and could be discharged because they are supervisors.
Shelby Memorial Home Assoc., 1 F.3d 550, 560-61 (7th Cir. 1993).
Both parties recognize that the nurses were promoted under a plan
that had been conceived long before the Union had been contacted.
As early as March 1991, John Elliot, the president of AMFM, had
concluded that management staff at all nine facilities should include
nurses. In the early fall of 1992, a committee was formed to address
this issue and it met from December 30, 1992 through the spring of
1993. On June 11, 1993, the committee drafted a proposed implemen-
tation plan, on June 28 Elliot approved the plan, and on July 19 he
implemented it at all nine facilities by a letter to all nurses. On July
20 Shrewsbury met with the nurses at the Summers facility to inform
them of the change, which included a $.25 raise. On July 21 AMFM
informed the nurses at the Summers facility they could not engage in
certain activities connected with unionization because they were
supervisors.
The NLRB interpreted this chain of events as showing that AMFM
tried to promote the most active Union organizers, including Gill and
Fleshman, out of the eligible voting pool and silence them in order to
stifle the organizational effort. The NLRB found that the promotion
4
was hastily implemented because of the unionization activities, noting
that the July 19 promotion occurred two weeks after the Union peti-
tion. In addition, the NLRB gave import to a May 21 memo from
Pame Lawson, the director of human resources, which told the com-
mittee that "OUR TIME IS GETTING SHORT!!!!" Furthermore, Gill
and Debbie Ashley, the former Director of Nurses, testified that the
nurses were not given new job descriptions, duties, or training until
November 1993.
In response, AMFM claims that the intended January 1993 imple-
mentation was delayed to July 1993 for various reasons, including
state approval of continuing education for nurses. AMFM contends
the promotion of nurses at all nine facilities is contrary to any inten-
tion to weaken the Union. AMFM also notes that after the NLRB
found that the nurses were not supervisors on August 17, it posted a
notice to employees indicating that it would not appeal the ruling and
management met with the nurses three weeks before the election to
explain they were eligible to vote.
NLRB's holding that AMFM interfered with the nurses' right to
organize is supported by substantial evidence. Although the record
reflects that the promotion of nurses had been a goal of the company
for a long time, the timing is evidence that its purpose was, in part,
to curtail Union activities. The Union petition on July 6 may not have
triggered the proposal, as NLRB seems to suggest, because Elliot had
approved the plan before the Union petition was filed. Nevertheless,
AMFM had known of Union activity and the employees involved
since at least May 27, and the rapid implementation of the promotion
from its formal proposal on June 11 to the counseling on July 21
stands in contrast to the lack of any significant follow-up until after
the Union election. No detailed plan to incorporate the nurses into the
management structure was announced with the promotion, and
AMFM ignored this supposedly important management change until
November. AMFM's explanation that the delay was due to late state
approval of continuing education for nurses is disingenuous, for
AMFM did not offer any credible explanation why continuing educa-
tion was crucial to integrating nurses into management. That the pro-
motion was implemented at all nine AMFM facilities does not show
that the threat of unionization played no part in the decision, as none
of the other facilities had been unionized and the NLRB could have
5
reasonably decided that the promotion was intended to curtail any
unionization of AMFM. Nor is the apparently good faith compliance
with the August 17 ruling relevant to AMFM's motivation in promot-
ing the nurses in the first place.
B. DISCIPLINARY ACTION TOWARDS GILL AND FLESHMAN.
Rick Shrewsbury, administrator of the Summers facility, testified
that supervisors complained on July 27 that Gill was soliciting for the
Union during working hours. Later that day Shrewsbury received
written complaints from employees about the solicitations, including
one from nursing assistant Brenda Allen that claimed a July 25 solici-
tation from Gill interfered with her work. Based on Shrewsbury's
instructions, the Director of Nursing, Debbie Ashley, issued an oral
disciplinary warning to Gill on July 31 and later issued a written
warning to Gill and reminded him of AMFM's policy against solicita-
tion. Also at Shrewsbury's direction, on August 6 Ashley issued an
oral warning to Kay Fleshman about her negative attitude, arguments
with co-workers, derogatory comments about residents under her
care, and refusal to wear her name tag.
NLRB found that nurses Gill and Fleshman were disciplined
because of their general activism on behalf of the Union and in retali-
ation for testifying at an NLRB hearing on July 28, and that these
warnings violated 29 U.S.C. § 158(a)(1), which prohibits conduct
tending to intimidate employees, and 29 U.S.C. § 158(a)(3), which
prohibits discrimination "in regard to . . . any term or condition of
employment to discourage membership in any labor organization
. . . ." NLRB also found that the warnings constituted a separate vio-
lation of 29 U.S.C. § 158(a)(4), which provides that it is an unfair
labor practice "to discharge or otherwise discriminate against an
employee because he has filed charges or given testimony . . . ." An
employer violates these sections when anti-union considerations are
"a motivating factor" for the action. NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 401-403 (1983), overruled on other
grounds, 114 S.Ct. 2251 (1994); NLRB v. Nueva Engineering, Inc.,
761 F.2d 961, 967 (4th Cir. 1985). Both direct and circumstantial evi-
dence may be relied upon to infer improper motive. See NLRB v. Low
Kit Mining Co., 3 F.3d 720, 728 (4th Cir. 1993); American Thread
Co. v. NLRB, 631 F.2d 316, 321 (4th Cir. 1980). Of course, an
6
employer must have known that the affected employees are engaged
in protected activities to have the requisite motive. See NLRB v. Dan-
iel Construction Co., 731 F.2d 191, 197 (4th Cir. 1984).
NLRB relied on Ashley's testimony that Elliot told her to find
some basis to reprimand nurses and Shrewsbury told her to "clean
house." Ashley also testified she steered Allen towards an incorrect
portrayal of the July 25 conversation with Gill, and that she had never
before disciplined any employee for violation of the no-solicitation
rule. Importantly, the ALJ had found Ashley a credible witness based
on her demeanor and collaborating evidence. The NLRB also relied
on the timing of the warning to Gill, which happened three days after
he testified at the NLRB hearing, and his key role in union activities
at the facility. Regarding the reprimand of Fleshman, NLRB relied on
her union activism, timing of the warning shortly after she had testi-
fied, and Ashley's testimony that other employees were not disci-
plined for the same behavior to infer that AMFM had an improper
motivation to discipline her.
AMFM claims that Gill was only counselled to avoid soliciting
during working time, and that he was free to solicit at other times, as
he continued to do with AMFM's knowledge. AMFM also attacks
Ashley's credibility by claiming she was biased against the company
because she was terminated for poor performance and contends that
Shrewsbury's desire to "clean house" simply referred to Ashley's fail-
ure to discipline employees for unexcused absences and that her testi-
mony was directly refuted by other managers.
We hold that the NLRB's finding that Gill and Fleshman were dis-
ciplined for improper reasons is supported by substantial evidence.
AMFM certainly knew that they were actively engaged in the union-
ization effort. The application of the non-solicitation rule to Gill, one
of the leading Union organizers, soon after he testified at the NLRB
hearing, is circumstantial evidence that AMFM disciplined him
because of his Union activities. The direct evidence of motive is from
Ashley's testimony, and we are reluctant to overrule the ALJ's first-
hand determination of her credibility. Had AMFM simply wanted
employees to follow the non-solicitation rule, as it claims, it could
have held a general meeting or posted a general announcement
instead of meeting only with Gill. And although the decision to repri-
7
mand Gill was allegedly made before the hearing, it could have been
made in retaliation for his future testimony at the NLRB hearing, for
AMFM knew he was going to testify. NLRB was also justified in
finding AMFM's treatment of Fleshman improper, based on the prox-
imity of the discipline to the hearing date, her key role in Union activ-
ities, and Ashley's testimony.
C. SUSPENSION OF EVALUATIONS AND RAISES.
AMFM evaluates employees annually on the date they were hired
and grants raises based on the evaluations. Throughout the union
campaign, AMFM completed evaluations and granted raises. After
the Union filed objections on September 13, Shrewsbury delayed
completion of annual employee evaluations and merit pay adjust-
ments for nine employees at the Summers facility. The benefits were
eventually granted retroactive to the date for which they were origi-
nally scheduled.
The NLRB found that the suspension violated 29 U.S.C.
§ 158(a)(1) and 29 U.S.C. § 158(a)(3), which provide that it is an
unfair labor practice to discriminate in regard to any tenure of
employment to discourage union membership or retaliate against
union activities. Delays in benefits during a campaign are unfair labor
practices even when the benefits are eventually given, unless there is
a legitimate business purpose that is not pretextual. Southern Mary-
land Hospital Center v. NLRB, 801 F.2d 666, 668-69 (4th Cir. 1986).
NLRB concluded that AMFM attempted to discourage union mem-
bership by blaming the suspension on the Union's objection to the
election. This conclusion was based on Ashley's testimony that
Shrewsbury said he imposed the freeze because of the allegations
filed by the Union and the tension caused by the election. In response,
AMFM claims Shrewsbury delayed the evaluations to satisfy himself
that evaluations done in the aftermath of the election were fair and
accurate. Further, it claims that evaluations had been delayed before
at the Summers facility for various reasons, including several occa-
sions in 1993 prior to the election.
The NLRB finding is supported by substantial evidence. Although
no evaluations were suspended during the Union campaign, evalua-
8
tions were frozen shortly after the close and contested union election.
Employees were adversely affected for an indefinite period and were
told that the action was taken because of Union activities. The NLRB
could have found that suspension was intended to dampen enthusiasm
for another election.
D. THREAT OF CLOSURE.
On August 23 or 24, Dr. Jack Woodrum, who was accompanied by
Clinical Care Coordinator Barbara Meadows and Social Services
Director Ray Nutter, asked Gill why he was trying to unionize the
Summers facility and opined that Elliot would close the Summers
facility if it became unionized.
The NLRB found this statement violated 29 U.S.C.§ 158(a)(1)
because it was an attempt to intimidate employees and influence the
outcome of the union election. An employer is responsible for com-
ments made by others if employees had "just cause to believe [the
person making the comment] was acting for or on behalf of the com-
pany." Proctor & Gamble Manufacturing Co. v. NLRB, 658 F.2d 968,
984 n. 18 (4th Cir. 1981), cert. denied, 459 U.S. 879 (1981) (quoting
NLRB v. Texas Independent Oil Co., 232 F.2d 447, 450 (9th Cir.
1956)). In this context, attribution is broader than the strict rules of
agency law. Id.The NLRB did not find Woodrum was AMFM's agent, but rather
that Woodrum had special status as the medical director of the Sum-
mers facility since its inception, and in this capacity had reviewed
AMFM's policies and procedures, signed the front page of AMFM's
policy and procedure manuals, trained facility employees, and been
included among the managers' names on the facility. Under these cir-
cumstances, the NLRB found that Woodrum's comments were attrib-
utable to AMFM. The NLRB also found that Woodrum's comments
were ratified by the silence of Meadows and Nutter. AMFM claims
that it is not responsible for the conduct of Woodrum, who is an inde-
pendent contractor without managerial authority, does not participate
in manager's meetings, and has no financial stake in AMFM. AMFM
also emphasizes that Gill testified he knew Woodrum was not part of
AMFM's chain of command.
9
We affirm the decision of the NLRB holding Woodrum's com-
ments were an attempt to intimidate a supporter of the Union. There
is substantial evidence that Gill could have reasonably thought Woo-
drum knew AMFM's view towards unionization and accurately repre-
sented that view with the acquiescence of AMFM managers.
III.
For the foregoing reasons, the NLRB findings are supported by
substantial evidence. The NLRB petition to enforce is
GRANTED.
10