1621 ROUTE 22 WEST OPERATING COMPANY, LLC, d/b/a Somerset Valley Rehabilitation and Nursing Center v. NATIONAL LABOR RELATIONS BOARD
Nos. 15-2466 & 15-2586
United States Court of Appeals, Third Circuit
June 6, 2016
Argued February 29, 2016
Finally, to the extent that McGowan asserts a theory of negligence per se, it is well established in New York law that “violation of a rule of an administrative agency is merely some evidence of negligence but does not establish negligence as a matter of law because a regulation lacks the force and effect of a statute.” Chen, 854 F.2d at 627 (alterations and internal quotation marks omitted).
Accordingly, we conclude that the district court correctly dismissed McGowan‘s negligence claim on the ground that it lacks a private analogue.
CONCLUSION
For the reasons stated herein, we AFFIRM the judgment of the district court.
Jeffrey W. Burritt [ARGUED], Linda Dreeben, Jill A. Griffin, National Labor Relations Board, Appellate and Supreme Court Litigation Branch, 1015 Half Street, S.E., Washington, DC 20570, Benjamin M. Shultz [ARGUED], U.S. Department of Justice, Civil Division, Room 7211, 950 Pennsylvania Ave., N.W., Washington, DC 20530, Counsel for Respondent/Cross-Petitioner National Labor Relations Board.
Katherine H. Hansen, William S. Massey, Patrick J. Walsh, Gladstein Reif & Meginniss LLP, 817 Broadway, 6th Floor, New York, NY 10003, Counsel for Intervenor, 1199 SEIU United Healthcare Workers East New Jersey Region.
Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges.
OPINION OF THE COURT
JORDAN, Circuit Judge.
Somerset Valley Rehabilitation and Nursing Center (“Somerset” or the “Employer“), known formally as 1621 Route 22 West Operating Company, LLC, petitions for review of an Order of the National Labor Relations Board (“NLRB” or the “Board“) that declared Somerset had committed several unfair labor practices in violation of
I. Background
This dispute arises out of a union election and its aftermath at Somerset in 2010. The nurses at the facility organized under the auspices of 1199 SEIU United Healthcare Workers East, New Jersey Region (the “Union“), which is an intervenor in this case in support of the Board. According to the Union and the Board, Somerset engaged in unfair labor practices—both during and after the election—in an effort to discourage the exercise of labor rights.
We begin by recounting the background of the dispute and the lengthy procedural history that brings it before us now. Under the NLRA, “[t]he findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.”
A. Factual Background
Somerset is a 32-room, 64-patient-maximum nursing and rehabilitation center in Bound Brook, New Jersey, operated since 2006 by CareOne Management, Inc. (“CareOne“), a manager of multiple nursing and rehabilitation facilities. Somerset employs about 75 nurses in the relevant bargaining unit, which comprises registered nurses
1. Pre-Election Period
The unionization drive began around June 2010, when Elizabeth Heedles, the Administrator of the facility, announced that Somerset would be reducing working hours and changing employees’ schedules. Several nurses, including Sheena Claudio, Shannon Napolitano, and Jillian Jacques, were concerned about the new schedules they were asked to follow. One of the supervisory nurses, Jacqueline Southgate, who would become a key witness for the Union, was also troubled that her full-time schedule was to be downgraded.
Somerset emphasizes that, prior to the announced scheduling changes, the New Jersey Department of Health and Senior Services conducted a survey of the facility in December 2009 that resulted in two citations for violations of state standards.1 As the ALJ later characterized the violations, “[t]he surveyors did not believe that a patient‘s pain was adequately controlled by the nurse assigned to her care.” (J.A. 12.) Somerset suggests that the poor survey “resulted in increased scrutiny on the Somerset nursing department” and led it to begin revamping its operations to improve care. (Opening Br. at 8.) The ALJ, however, disagreed and saw the survey violations as routine, suggesting that Somerset‘s characterization was a post hoc pretext for anti-union actions. According to the ALJ, it was “common” for a facility to be cited for deficiencies, and, in this case, Somerset “corrected the deficiencies within a couple of weeks after receiving the report, and submitted a written plan of correction in late December 2009,” which the state accepted. (J.A. 12.) A state recertification survey in January 2010, just a month after the original survey, found that Somerset was in substantial compliance, though the survey report did recommend a 27-day $200-per-day penalty for the December violations.
Whatever the motive for the operational changes at Somerset, they prompted concern among the nurses. Jacques responded by contacting CareOne‘s Vice President of Human Resources, Andrea Lee, who promised to “look into it.” (J.A. 10.) Lee visited the facility, met with several nurses, expressed surprise about the large-scale changes, and promised to continue looking into it. She did not, however, follow up with the nurses any further. Consequently, they made contact with the Union and met with Union organizer Brian Walsh in late June 2010.
Claudio, Napolitano, and Jacques then began speaking about the Union with their colleagues at Somerset and generated interest from several other nurses, including Southgate, Valerie Wells, and Lynette Tyler. They prepared a pro-Union YouTube video, distributed and collected Union authorization cards,2 held meetings
at employees’ homes and at a local diner, and organized employees to wear pro-Union stickers. Their campaign culminated in a July 22, 2010 petition for a union election submitted to the Board by nurses Jacques and Napolitano and organizer Walsh. The Union then circulated to Somerset‘s employees a pro-Union brochure with photographs of 35 employees, including Claudio, Jacques, Napolitano, and Wells. Somerset acknowledges that “Napolitano, Claudio, and Jacques were among the leaders in the Union organizing campaign.” (Opening Br. at 9 (citing J.A. 1673).)
Just over a week after the union petition was filed, CareOne‘s regional director, Jason Hutchens, brought Doreen Illis into Somerset to replace Heedles as Administrator. Illis was transferred from a substantially larger CareOne facility, and Heedles took over at the facility that Illis left. The ALJ expressed doubt that Heedles was shifted for reasons of effectiveness, noting that she was transferred to lead a facility with double the number of beds, and that CareOne was aware of the disenchantment with the scheduling changes at Somerset. Somerset made other management changes in August 2010, including bringing in Inez Konjoh as a replacement Director of Nursing and giving Southgate management responsibilities.
2. Election Campaign
By late July, after the union petition was filed, an election campaign was in full swing. Somerset campaigned vigorously against the union—as it had a right to do—but in so doing it undertook actions that the Board later concluded crossed the line into unfair labor practices.
Hutchens held several meetings with employees and received their complaints about the controversial schedule changes. That schedule was ultimately not implemented. In the meetings, Hutchens apologized for the proposed changes and said that he had brought in a new Administrator and Director of Nursing to rectify the problems. When employees pressed him about ongoing problems, he noted that any policy changes during the union election would be illegal, but he asked the employees to give Somerset a chance to show them that things could improve. Several employees testified about the meetings and further indications from CareOne managers that they would “fix” things. (J.A. 31) Several employees also testified that managers talked to them personally about the Union and urged them to vote against it.
Though he denied any unlawful activity, Hutchens acknowledged that the Employer ran a “vote no” campaign. (J.A. 14.) He and other Somerset officials held general meetings and spoke with nurses at the nursing stations. Chris Foglio, the Chief Executive Officer of CareOne, met with employees and discussed benefits that CareOne might offer, including support for housing expenses and tuition reimbursement. Management held meetings within its own ranks, discussing Union activities and how each individual nurse might vote. It also distributed leaflets to employees to dissuade them from voting for the union.
The election was finally held on September 2, 2010. Out of 71 votes cast, 38 were for the Union and 28 against, with five ballots being subject to challenge. After hearing and overruling Somerset‘s objections, an NLRB hearing officer certified the Union in January 2011, a decision affirmed and certified by the Board in August 2011.
3. Post-Election Acts of Alleged Retaliation
At issue in this case is the Board‘s conclusion that Napolitano, Claudio, Jacques, and Wells were discharged as retaliation for their unionization activities. Claudio, Jacques, and Napolitano were “the three leading union advocates.” (J.A. 32) They contacted the Union and worked with Walsh to organize the nurses at Somerset; they appeared in the Union brochure and YouTube video; and they served as the Union‘s election observers. Wells also appeared in the YouTube video and in the brochure; she signed an authorization card for the Union; and she spoke favorably about the Union at work. Those facts, paired with the conclusion that Somerset‘s “animus toward the Union is beyond question,” led the ALJ to decide that the union activities of those women “were well known to” Somerset, which then targeted them for retaliation. (J.A. 32.)
The first set of actions that formed the basis for the NLRB‘s investigation of post-election events at the nursing home concerned Somerset‘s enforcement of its attendance policy. Only 11 days after the election, Somerset issued two attendance warnings to Jacques, two to Claudio, and one to Napolitano, even though “[t]hey had not received written discipline prior to the election for the[ir] ... attendance records.” (J.A. 32.) The timing was troublesome—before the election, Somerset was lax with regard to attendance, but immediately after the election Konjoh took a personal interest in tardiness. Illis did not begin to focus on attendance until six weeks into her tenure as Administrator, after the election. Not only did the three nurses receive discipline for recent attendance issues, they were disciplined for lateness and absences dating back to nine months prior to the election. Before the election, only one employee had ever received formal discipline for attendance problems.
The second set of Somerset‘s actions at issue before the Board had to do with performance-based discipline. That discipline became significantly stricter immediately after the election. The ALJ concluded that
[medicine and treatment] records were not scrutinized as carefully before the election as they were after the election, and ... any errors in those records found prior to the election were rarely the subject of discipline. For example, [Somerset] offered in evidence numerous examples of discipline given to employees after the election for performance issues, but could only present three instances of discipline prior to the election. Even as to them, the maximum discipline issued was a written warning.
(J.A. 33.)
There were also suspicious circumstances, in the ALJ‘s view, surrounding the dismissal of each of the four employees at issue. Claudio received her first warning
Jacques had worked at Somerset for 11 years. She was discharged for recordkeeping errors that, prior to the election, “would have been remedied with in-service training” and for which “other nurses received less discipline.” (J.A. 34.) The sudden discharge came even as Somerset continued to put Jacques in the senior role of charge nurse, acknowledging her “experience and expertise.” (J.A. 7.) Moreover, Southgate testified that Konjoh told her that Somerset management was watching union organizers closely for infractions, and an employee who was a confidant of Illis‘s testified that “Illis told him to look for errors committed by Jacques in her charting.” (J.A. 34.)
Napolitano was discharged two weeks after the election for improperly administering a zinc pill to a patient. She did improperly administer the pill, but Konjoh seemed intent on collecting evidence to support disciplinary action because she had instructed the patient to save any improperly administered pills rather than correct an error when discovered. Three other nurses made the same mistake and faced no discipline. A second reason cited for Napolitano‘s dismissal was that she noted a patient‘s pulse oxygen level at 0%, “an obvious error in documentation” that would have been “simply corrected” before the election. (J.A. 35.)
Wells was a staffing coordinator at Somerset for five years before the election and had not previously been disciplined. She was on vacation during the election, and when she returned to work five days afterward, she was given a disciplinary warning for the first time. She had failed to reconcile discrepancies between manually typed schedules and entries in the computerized system for the prior weekend‘s shifts. Somerset‘s past practice would have allowed her to have the morning to correct the scheduling inconsistencies on her first day back. Instead, she was written up, and she received two more warnings the following week for mistakes in inputting employee schedules and a failure to provide Konjoh a written schedule. She was discharged on September 21, within three weeks of the election. The ALJ acknowledged that the scheduling errors and failure to properly use the electronic system were problematic, but he concluded that the sudden and rapid discipline following the election suggested that the true motivation for Wells‘s discharge was retaliation.
The ALJ found two additional retaliatory acts against other employees. First, when union-supporter Tyler left Somerset, her records were marked with a notation that she was “not eligible for rehire—resigned with bad attitude toward company.” (J.A. 35.) She received this negative notation, even though before the election Illis had encouraged her to stay or take advantage of a tuition-assistance program. Separately, Somerset dropped several per diem employees within the two to three weeks following the election. To find replacements, Illis solicited a per diem nurse at another CareOne facility to come to Somerset and recommend other per diem employees who “would vote in [Somerset‘s] favor in a new election” if the results of the first election were overturned. (J.A. 36.)
B. Procedural Background
Somerset‘s anti-union activities led the Union to file charges with the NLRB, all
While the Board was considering the case, it separately sought temporary injunctive relief before the United States District Court for the District of New Jersey, under
Subsequently, in June 2014, the Supreme Court ruled in NLRB v. Noel Canning, 573 U.S. 513, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), that several members of the Board had been appointed in violation of the Recess Appointments Clause of the Constitution. We then granted the Board‘s motion to vacate the 2012 Order and to remand because two members of the Board who sat on that three-member panel had been invalidly appointed in light of Noel Canning. The Board issued a new Order on June 11, 2015 (“2015 Order” or the “Order“), affirming its 2012 Order and the ALJ decision. In addition to reaffirming those prior decisions, the Board expressly rejected the reasons that the District Court had given when denying complete relief in the § 10(j) proceedings. The Board reiterated the conclusion from the 2012 Order that, since “virtually all” of the discipline imposed for the supposed deficiencies of the employees was unlawfully motivated, such discipline could not be the basis for avoiding the remedy of reinstatement and back pay. (J.A. 1.) According to the Board, the errors ascribed to Jacques and Wells had long predated the union election and were merely pretexts that could not preclude reinstatement.
Somerset petitioned us to review the 2015 Order, and the Board cross-applied for enforcement. Those are the applications before us now.
II. Jurisdiction
The NLRB had jurisdiction over this matter under
The exhaustion requirement is important in this case because one of the principal grounds for review that Somerset urges upon us was never raised before the Board. Specifically, Somerset now contends that the NLRB‘s Acting General Counsel was serving in violation of the Federal Vacancies Reform Act (“FVRA“),
Somerset argues that the lawfulness of the General Counsel‘s service “is a jurisdictional issue that goes to the Board‘s very authority to act,” suggesting that we may therefore review the issue despite the exhaustion bar in
Somerset is certainly correct that the General Counsel of the NLRB plays a gate-keeping role in all unfair labor practices cases. But that does not itself provide jurisdiction for us to review the lawfulness of the President‘s designation of an Acting General Counsel. Our jurisdiction to review the acts of administrative agencies is a product of statutory grant, and Congress has broad discretion to determine the breadth of that jurisdiction. See Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330, 58 S.Ct. 578, 82 L.Ed. 872 (1938) (“There can be no question of the power of Congress [] to define and limit the jurisdiction of the inferior courts of the United States.“). Congress may, for instance, remove from federal courts the jurisdiction to issue injunctions in labor disputes. Id. at 329-30, 58 S.Ct. 578. It may require that challenges to a law be brought in “one tribunal rather than in another,” and parties may forfeit their rights “by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944). The latter is precisely what Congress has done in
[b]oth their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question—whether framed as an incorrect application of agency authority or an assertion of authority not conferred—is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as “jurisdictional.”
Id. at 1869. Therefore, if the Board was acting unlawfully in considering a complaint brought by an improperly serving Acting General Counsel, its actions were no more ultra vires than if the Board had misapplied the NLRA. We consider both sorts of claims under the strictures of that statute, including the exhaustion bar of
To overcome that straightforward reading of both the NLRA and long-established case law on Congress‘s power to shape federal appellate court jurisdiction, Somerset leans heavily on two sentences from our opinion in NLRB v. Konig, stating that there is a
distinction between jurisdiction in the sense of the overall authority of the Board to hear the case under the NLRA and the jurisdiction of the Board to issue an order based upon a factual determination made by the Board. “While the Board‘s statutory jurisdiction may be raised at any time, the facts upon which the Board determines it has jurisdiction may be challenged only upon timely exception.”
79 F.3d 354, 360 (3d Cir. 1996) (quoting NLRB v. Peyton Fritton Stores, Inc., 336 F.2d 769, 770 (10th Cir. 1964)). Based on that quotation, Somerset argues that it may raise its challenge regarding the Acting General Counsel “at any time” because the issue implicates “the overall authority of the Board to hear the case.” Id. That position cannot prevail for three reasons.
First it conflicts with the Supreme Court‘s subsequent instruction in City of Arlington that any distinction between a “jurisdictional” and “nonjurisdictional” exercise of agency authority is merely “illusory.” 133 S.Ct. at 1869. The Court was there considering deference to agency in-
Second, the language in Konig is too general to support Somerset‘s conclusion that we are free to review unexhausted challenges to agency action whenever such a challenge can be framed as “jurisdictional.” The case does not define what is meant by “the overall authority of the Board to hear the case under the NLRA.” Konig, 79 F.3d at 360. Nor does it explain whether we may hear those challenges based on some inherent power or because they meet the “extraordinary circumstances” exception to the exhaustion bar of
That particular passage from Konig also happens to be dicta, which is the third reason we decline to read it as allowing Somerset to avoid the exhaustion bar. In the paragraph immediately following Konig‘s distinction between “the overall authority of the Board to hear the case under the NLRA and the jurisdiction of the Board to issue an order based upon a factual determination made by the Board,” we went on to rule that the issue raised in Konig was the latter type of case, based on a “factual determination by the Board.” 79 F.3d at 360. We applied the exhaustion bar of
Our conclusion accords with the developing consensus of other courts that have considered this issue. In addressing challenges to the appointments of members of
All of those cases concerned challenges to the authority of the Board itself to act based on the constitutional infirmity of its members’ appointments. Even in those cases, courts have looked only to the “extraordinary circumstances” exception to
Since Somerset has no way around the
III. Discussion
Somerset petitions for review of the Board‘s Order based on the following grounds. First, it asks us to vacate the Order because Chairman Mark Gaston Pearce should have recused himself in response to Somerset‘s motion for recusal. As to the merits of the Order, Somerset challenges the Board‘s determination that its conduct involved unfair labor practices. Finally, it argues that, even if it did violate the NLRA by dismissing certain employees, reinstatement is not the appropriate remedy in this case. We consider each objection in turn.
A. Motion to Recuse
Somerset asks us to vacate the Board‘s Order because, it says, Chairman Pearce should have recused himself from the three-member panel that heard this case. According to Somerset, recusal was necessary because Ellen Dichner, who was serving as chief counsel to Chairman Pearce, had previously represented the Union in this very case, both before the ALJ and in the
The Board denied Somerset‘s motion for recusal in its 2015 Order. It acknowledged that “Dichner, while in earlier private practice, represented the Charging Party Union in this case up to the exceptions stage,” but contended that “Dichner has taken no part in the Board‘s consideration of this case.” (J.A. 1 n.1.) Evidently, it was unimpressed by the “appearance of impropriety” issue.
“We review an agency member‘s decision not to recuse himself from a proceeding under a deferential, abuse of dis-
We therefore do not put ourselves in the position of Chairman Pearce or the Board and make the recusal decision anew; rather, we simply review whether the decision was arbitrary or unreasonable. Id. at 565. Given that there is no evidence that Dichner played any role in the consideration of this case, or that Chairman Pearce was less than diligent in screening her from the proceedings, and given further that the assertions about Dichner‘s indirect influence are based on speculation, we cannot say that the Board abused its discretion by maintaining the Chairman on the three-member panel.
B. Unfair Labor Practices
Somerset also challenges the correctness of the Board‘s determination that it engaged in unfair labor practices. In considering the Board‘s decision, we accept factual findings as conclusive if supported by substantial evidence, while subjecting legal conclusions to plenary review with deference to the Board‘s interpretation of the NLRA. Mars Home for Youth v. NLRB, 666 F.3d 850, 853 (3d Cir. 2011).
“Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Citizens Publ‘g & Printing Co. v. NLRB, 263 F.3d 224, 232 (3d Cir. 2001) (internal quotation marks omitted). “In particular, we defer to the Board‘s credibility determinations, and will reverse them only if they are inherently incredible or patently unreasonable.” Grane Health Care v. NLRB, 712 F.3d 145, 149 (3d Cir. 2013) (internal quotation marks omitted).
As to the Board‘s legal determinations, “[f]amiliar principles of judicial deference to an administrative agency apply to the NLRB‘s interpretation of the NLRA. Therefore, the NLRB‘s construction of the NLRA will be upheld if it is ‘reasonably defensible.‘” Quick v. NLRB, 245 F.3d 231, 240-41 (3d Cir. 2001) (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979)) (internal citation omitted). “[C]ourts of appeals should not substitute their judgment for that of the NLRB in determining how best to undo the effects
There is substantial evidence in the record to support the Board‘s findings that Somerset unlawfully interrogated its employees and solicited their grievances, and that it retaliated against several employees by disciplining and discharging them due to their pro-Union activities. Thus, as detailed herein, we must sustain the Board‘s conclusion that Somerset violated
1. Interrogating Employees
An employer violates
The Board believed several accounts from Somerset employees about management interrogating them before the election. Konjoh asked Claudio how other employees would vote and asked her to vote “no” and give management a chance to improve conditions. CareOne official Jessica Arroyo asked CNA Avian Jarbo whether Somerset was “going to get a ‘no’ vote” from her. (J.A. 30.) Konjoh asked Stubbs what she thought of the Union and stated that, although Stubbs had a union at another job, “we don‘t want one here.” (J.A. 30.) Illis, the highest-ranking management official at the facility, asked Tyler “where are you in terms of voting?” (J.A. 30 (editorial marks omitted).) She further asked whether Tyler knew how her coworkers were voting, and whether Tyler could convince them to vote no. Throughout the course of those sorts of questions, “[n]o assurances were made to the employees” that they would not face retaliation for failure to cooperate with management. (J.A. 31.)
Though Somerset contests the characterization of the questioning as coercive, when employee testimony about the interrogations conflicted with that of Somerset managers, the ALJ and the Board credited the version given by the employees, explaining that they “testified in a straightforward, confident, consistent manner.” (J.A. 30.) The Board‘s credibility determinations are entitled to “great deference.” Atlantic Limousine, Inc. v. NLRB, 243 F.3d 711, 718 (3d Cir. 2001). In light of the testimony credited by the Board, substantial evidence supports its conclusion that management officials at Somerset questioned employees in a manner unlawfully coercive under
2. Retaliation
departure from past practice indicates unlawful motive); Hanlon & Wilson Co. v. NLRB, 738 F.2d 606, 614 (3d Cir. 1984) (union animus and disparate treatment indicate unlawful motive); Champion Parts Rebuilders, Inc. v. NLRB, 717 F.2d 845, 850-51 (3d Cir. 1983) (timing and disparate treatment establish unlawful motive).
3. Solicitation of Grievances
In this case, the Board credited employee testimony that, after the union petition was filed, Hutchens and Illis told employees they would try to “fix” things. The Board made particular mention that management transferred Heedles and eliminated the proposed scheduling changes which had created employee unrest, that it eliminated one of Tyler‘s job duties after she complained her job was “overwhelming,” and that it made garbage bags available in response to Stubbs‘s complaint. Substantial evidence supports those findings. Though some of the grievances, when viewed in isolation, may be quite
C. Reinstatement Remedies
As a final argument, Somerset contends that, even if we reject its legal challenges to the Board‘s findings of unlawful labor practices, we should not enforce the Board‘s proposed remedies in full. Specifically, it contends that Napolitano, Claudio, Jacques, and Wells should not be reinstated because they would put patients at risk.
The Board does indeed have a “delicate responsibility” in the healthcare services context to “balanc[e] ... conflicting legitimate interests” in a way that safeguards patients and “effectuate[s] national labor policy.” Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978) (internal quotation marks omitted). In reviewing the Board‘s determination, though, our “judicial role is narrow,” and an order of the Board “must be enforced” if it is rationally “consisten[t] with the Act” and “supported by substantial evidence on the record as a whole.” Id. That principle accords with our generally deferential standard of review for the Board‘s remedial orders, which we review for abuse of discretion. Kenrich Petrochemicals, Inc. v. NLRB, 907 F.2d 400, 405 (3d Cir. 1990) (en banc). Moreover, “[r]einstatement is the conventional correction for discriminatory discharges,” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), and we are particularly hesitant to overturn that choice of remedy.
The crux of Somerset‘s argument is that, even if those four employees were unlawfully dismissed in retaliation for their unionizing activities, the Board failed to consider whether reinstatement was appropriate in light of safety concerns. That, however, is not a fair assessment of the Board‘s remedial analysis. In applying the Wright Line test, the Board evaluated both whether Somerset acted with a discriminatory motive and “would have reached the same decision absent the protected conduct.” 251 NLRB at 1087. Therefore, the analysis for unfair labor practices in this case necessarily incorporated the question of whether safety concerns should preclude reinstatement because, if the employees were putting patients at risk, they could have been fired regardless of Somerset‘s motives. If Somerset could not prove that it would have discharged the four employees for unsafe conduct, it also could not show that the misconduct would have disqualified them from reinstatement. As we have already recognized, substantial evidence supports the Board‘s determination that the alleged performance deficiencies were merely pretextual reasons for dismissing Napolitano, Claudio, Jacques, and Wells. We therefore also conclude that the Board did not abuse its discretion in determining that the safety concerns Somerset raises against reinstatement are likewise pretextual and invalid.
Of greater concern to us is Somerset‘s claim that the Board improperly ignored the evidence and expert opinion from the
The NLRA is structured to allow dual (and potentially dueling) proceedings, as the Board has authority to make determinations to prevent unfair labor practices under
the Board has exclusive jurisdiction to render initial decisions in these labor matters and the courts [of appeals] merely review such decisions under a “substantial evidence” standard. This is not affected by the fact that the district court judge who heard the Section 10(j) petition had before him the same record that the ALJ had in the unfair labor practices proceeding.
NLRB v. Kentucky May Coal Co., 89 F.3d 1235, 1240 (6th Cir. 1996) (citing
In its 2015 Order, the Board did expressly consider the District Court‘s
IV. Conclusion
For the foregoing reasons, we will deny Somerset‘s petition for review and grant the Board‘s cross-application for enforcement.
FREE SPEECH COALITION, INC.; American Society of Media Photographers, Inc.; Thomas Hymes; Townsend Enterprises, Inc., d/b/a Sinclair Institute; Barbara Alper; Carol Queen; Barbara Nitke; David Steinberg; Marie L. Levine, a/k/a Nina Hartley; Dave Levingston; Betty Dodson; Carlin Ross, Appellants
v.
ATTORNEY GENERAL UNITED STATES of America
No. 13-3681
United States Court of Appeals, Third Circuit.
Argued December 9, 2015
(Filed: June 8, 2016)
Notes
Without recounting anew the facts summarized above, we conclude that the Board did indeed have substantial evidence to support its conclusions that Claudio, Napolitano, Jacques, and Wells were targeted because of their union support and that Somerset‘s justifications for the adverse employment actions it took were simply pretextual.
The principal response Somerset gives to the Board‘s ruling on retaliation is that the stricter policies it instituted after the election were actually motivated by a “history of poor nursing home performance that long predated union activity at the facility.” (Opening Br. at 50.) But the timeline does not bear that out. The deficiencies uncovered in the December 2009 survey were deemed “isolated” (J.A. 3039), and, within weeks, Somerset had corrected them and submitted a successful correction plan to state authorities. The very next month, a resurvey found Somerset in substantial compliance. In fact, no significant discipline or tightening of policy took place close to the December 2009 inspection that Somerset suggests was the reason for its stricter policies. Instead, the discipline began months later, immediately following the union election. The timeline that Somerset urges us to consider thus supports the Board‘s finding that Somerset was unlawfully motivated when it disciplined and discharged the four union activists. See, e.g., Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 814 (3d Cir. 1986) (timing and required the employee to persuade it that antiunion sentiment contributed to the employer‘s decision.” Dir., Office of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 278, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994).