351 F.3d 226 | 6th Cir. | 2003
Before: BOGGS, Chief Judge; KRUPANSKY and CLAY, For the reasons that follow, we AFFIRM the district
Circuit Judges. court’s injunction order. 1 No. 02-5371 Ahearn v. Jackson Hospital Corp. 3 4 Ahearn v. Jackson Hospital Corp. No. 02-5371 Procedural History On February 20, 2002, the Hospital moved for a partial stay pending appeal to this Court, which the district court denied On January 26, 2001, the Board filed a Petition for on March 22, 2002. The Hospital filed a notice of appeal on Injunction under § 10(j) of the NLRA, 29 U.S.C. § 160(j). March 19, 2002. The Board filed a cross-appeal with respect The petition alleged, in pertinent part, that there was
to the portions of the district court’s order that denied reasonable cause to believe that the Hospital had undertaken injunctive relief, but later withdrew the cross-appeal by various actions that violated § 8(a)(1), (3), and (5) of the stipulation of dismissal on June 24, 2002. NLRA, 29 U.S.C. § 158(a). On February 16, 2001, the Board filed an Amended Petition to the same effect, which included Facts additional claims for relief, specifically: (1) unlawful threats A. The Union’s Formation and the Hospital’s Refusal to of discharge, loss of jobs, and license revocation for engaging Negotiate in strike activity; (2) unlawful surveillance of employees participating in a union strike; (3) unlawful discharge and
The Hospital operates a 55 bed acute care hospital in disciplining of employees in retaliation for their union Jackson, Kentucky. On June 8, 1998, the Union Steelworkers activities; (4) post-strike implementation of break schedules of America, AFL-CIO-CLC (the “Union”) was certified as the for unit employees without providing notice and opportunity exclusive bargaining representative for the Hospital’s 170 for collective bargaining on the issue; and (5) refusal to meet nurses and non-professional employees. The Union met with and collectively bargain with the employees’ recently- the Hospital several times to negotiate a first contract, but was established union. The Board requested injunctive relief, unsuccessful. A decertification election was held on specifically that the district court order the Hospital (pending December 10, 1999, but the Union filed unfair labor practice the NLRB’s ruling on the merits with respect to a charges, and the Board impounded the ballots pending an simultaneous administrative proceeding before it) to reinstate investigation. Following the resolution of these charges, the the discharged employees, to recognize and bargain with the ballots were counted and the Union won the election. The union, and to cease and desist from committing the unfair Union demanded bargaining in April of 2000, but the labor practices. The Hospital filed an answer, in which it Hospital refused to meet with the Union, claiming that the denied that it had engaged in unfair labor practices and denied Union had to provide a complete economic proposal before it that the Board was entitled to a temporary injunction. would bargain. On January 18, 2002, the district court entered a 60 page B. The Hospital’s Threats, Union Strike, and the memorandum opinion and order granting the petition in part. Hospital’s Hostility Toward the Strikers In relevant part, it ordered the reinstatement of three discharged Hospital employees, and it ordered the Hospital to
By the spring of 2000, the employees began to murmur cease and desist from unlawfully threatening employees with about a possible strike to pressure the Hospital into discharge, conducting surveillance of its employees while bargaining with the Union. Evidence was presented that in they are lawfully striking, and altering employees’ break April 2000, the Hospital’s supervisors told the employees that schedules without providing notice and opportunity to engage strikers might lose their jobs. Supervisor Ken Hicks told an in collective bargaining. Judgment to this effect was entered employee in April 2000 that, in the event of a strike, on January 22, 2002. employees who were replaced “would not have a job” when No. 02-5371 Ahearn v. Jackson Hospital Corp. 5 6 Ahearn v. Jackson Hospital Corp. No. 02-5371 the strike ended. House supervisor Phyllis Gibbs told a group C. The Hospital’s Post-Strike Adverse Actions of employees in June that any employees who did not have a 1. Terminations of Laotta Sizemore, Clara Gabbard, contract and went on strike would be fired. Also in June and Sandra Barker Hutton. 2000, nursing supervisor Allena Hale told three employees that she had been told that employees would be fired if they
This appeal principally revolves around the terminations of went on strike without a contract. Dr. Edward Burnette, the three employees: Laotta Sizemore, Clara Gabbard, and emergency room director, told at least four employees that if Sandra Barker Hutton. they went on strike they were “setting [themselves] up to be fired.” (J.A. at 763-66). On several other occasions, Dr.
Laotta Sizemore was a registered nurse (RN) hired by the Burnette told employees that if they insisted on participating Hospital in 1992 as a weekend house supervisor. Sometime in union activity and going on strike they would lose their after the union was originally certified in 1998, Sizemore’s jobs. position was eliminated and she became a nonsupervisory night shift RN. Thereafter she became active in the Union,
In mid-June 2000, the Union served the Hospital with a 10 wearing union buttons to work and speaking out in favor of day strike notice. Soon thereafter, supervisor Diana the Union. During the strike, Sizemore accepted a full-time Blankenship told a group of five employees that “if this is not position as an emergency room nurse manager at another ruled an unfair labor practice strike, some of you all will not hospital, but she wished to continue working at the Hospital be coming back,” and made a similar comment to another on a part-time, or “PRN,” basis. On August 15, 2000, the day employee on another occasion. On July 7, 2000, employee the strike ended, Sizemore notified the Hospital of this Anita Turner approached her supervisors, asking to alter her desired change by letter, stating, “Effective today, I would schedule so she could participate in the strike. Chief nursing like to change my status from full-time to PRN.” The officer Michelle Boyce-Obenchain became “very angry” and Hospital sent Sizemore a return-to-work letter, dated “loud” and told Turner that if she left the facility Obenchain August 17, 2000, instructing her to report to work at 5 p.m. on would see to it that Turner lost her license, based on patient August 22, 2000. (J.A. at 735, 962.) Sizemore indeed abandonment. Obenchain had initiated such procedures in the reported on August 22, 2000 only to discover that although past. her name appeared on the schedule, her shifts were crossed out. Sizemore queried Hale as to why her shifts were crossed Nevertheless, the Union went on strike on July 8, 2000. out, and Hale replied that she did not know. Sizemore left During the strike, the Hospital had picketers videotaped as messages for Obenchain and her supervisor, neither of whom they engaged in their strike activities. The Hospital also returned her calls. posted anti-union signs from a hospital window visible from where the employees picketed. On August 15, 2000, the
On September 4, 2000, Sizemore agreed to cover someone Union made an unconditional offer to return to work, which else’s shift and completed the necessary paperwork. When the Hospital accepted. The strikers returned to work on she called supervisor Jeri Howard to ensure that she was on August 20, 2000. the schedule, Howard replied that Sizemore was “not on the schedule any more.” (J.A. at 740.) As it turned out, after Sizemore submitted her change-of-status request, Obenchain recommended to the Hospital’s CEO David Bevins that
No. 02-5371 Ahearn v. Jackson Hospital Corp. 7 8 Ahearn v. Jackson Hospital Corp. No. 02-5371 Sizemore not be retained as a PRN because she had failed to recommended Gabbard’s discharge for failing to follow the work a 15 day notice period before resigning, pursuant to the Hospital’s “trade and cover” policy. (J.A. at 857-59.) The Hospital’s resignation policy. Thus, Sizemore was policy requires employees to obtain their own coverage if discharged. Her discharge papers indicate an effective date of they do not notify supervisor Obenchain of such intended August 21, 2000 and state that Sizemore resigned, failed to absences by 7:00 a.m. of the 15th of the month. Because work her notice period, and was non-rehirable. Obenchain Obenchain received Gabbard’s request for time off on August nevertheless failed to contact Sizemore with any of this 20, 2000, the Hospital apparently reasoned, Gabbard was information, nor did she even return the calls Sizemore had responsible for finding her own coverage. The Hospital had placed to her upon discovering her crossed-out schedules on mailed a copy of the policy with correspondence, via certified August 22, 2000. Obenchain also acknowledged that no mail, directing Gabbard to follow the “trade and cover” Hospital policy states that an employee has to resign or work policy. However, Gabbard evidently did not receive the a notice period before converting from full-time to PRN certified mail. However, the “trade and cover” policy does status, which is what Sizemore’s August 15, 2000 written not mention discipline or discharge for failure to follow the notice had clearly endeavored to do. policy. (J.A. at 882-84.)
Clara Gabbard had been a part-time ward clerk with the The Hospital has a separate “incidents of absence” policy, Hospital since 1990. In April of 2000, Gabbard gave her which provides that for each unexcused absence where an supervisor, Robin McGlothen, written notice that she was employee provides at least two hours notice, the employee unavailable to work the weekends of August 27 and receives an “incident of absence.” (J.A. at 1007). Two September 2, 2000, due to her annual participation as “incidents of absence” within a 90 day period results in a chairperson of the Breathitt County Honey Festival. verbal warning. It is undisputed that Gabbard provided well Subsequently, Gabbard became involved in union activity, over two hours notice of her intended absence. (Indeed, informing Obenchain that in the event of a strike she would Gabbard provided several months’ notice considering her first not cross the picket line and supposedly received a “mean” notification to her supervisor in April of 2000, although and “hateful” look in response. (J.A. at 698-701.) Indeed, admittedly not to Obenchain directly.) It also appears Gabbard actively participated in the strike, including making undisputed that Gabbard did not have any “incidents of pro-strike tapes that were placed on a local radio station and absence” on her record at the time of her August 27, 2000 published in the newspaper. absence. Nevertheless, Obenchain did not consider an
alternative penalty to discharge in Gabbard’s case. Moreover, After the strike, Gabbard again reminded the Hospital on prior to the strike, another employee, Jeri Howard, had agreed August 17 and 20, 2000, that she needed the following two to cover another employee under the “trade and cover” policy, weekends off to serve at the Honey Festival. The Hospital
but failed to show up, and received only a verbal warning. nevertheless put her on the schedule, and Gabbard learned of (J.A. at 864-68.) No explanation was provided by the this from another employee on August 26, 2000. Gabbard Hospital for this apparent differential treatment. again gave notice, this time to supervisor Hale. Gabbard indeed did not work the weekend of August 27, 2000, and the Sandra Barker Hutton was a billing and admitting clerk for Hospital found another employee to cover the shift. the Hospital between March 1996 and March 1998, and a However, on August 31, 2000, the Hospital notified Gabbard PRN thereafter. Hutton also worked full-time during the day by letter of her termination. Obenchain testified that she for the commonwealth attorney’s office. Hutton also was No. 02-5371 Ahearn v. Jackson Hospital Corp. 9 10 Ahearn v. Jackson Hospital Corp. No. 02-5371 active with the Union, wearing buttons from 1998 through “made no effort to attend any video session” and because the July of 2000, and she picketed during the strike. Following deadline for viewing had been August 27, 2000 (not the strike, the Hospital informed Hutton by letter of her return September 1, 2000, as Cooper later testified). (J.A. at 803, to work as a PRN. 964).
In March of 2000, the Hospital’s owner, Community Health 2. Other Adverse Actions Systems (“CHS”) reached a $31 million settlement agreement Prior to the strike, the Hospital’s housekeeping and with the United States government regarding its various maintenance employees had been allowed to select their own violations of the False Claims Act (“FCA”), 31 U.S.C. § 3729 break and lunch times. However, immediately following the et seq. As part of this agreement, CHS’s hospitals were strike, the Hospital implemented a schedule for breaks and required to conduct claim fraud prevention training in the lunches, which assigned a particular break and lunch time for form of a one-hour video by September 9, 2000. Based on each employee. The record also contains an assortment of the September 9, 2000 deadline, the Hospital set an internal evidence pertaining to various other firings of employees who deadline of September 1, 2000 for the completion of training. had participated in the strike, namely Lois Noble, Beverly The Hospital’s CFO Randy Cooper posted a schedule of
Clemons, Sandra Baker, and Diane Taulbee. Additionally, viewings to take place on August 14 to 27, 2000. the Hospital issued a verbal warning to phlebotomist Sally Hutton received a phone call from representatives from the Dunn, who was a strong union supporter prior to the strike. Hospital’s business office, who scheduled Hutton to watch On her second day back to work following the strike, Dunn the compliance video on August 30, 2000 at 3:00 p.m. testified that she was approached by her supervisor, Diana Hutton was never informed by anyone of the September 1 Blankenship, and accused of taking a 30 minute break, when deadline or that anyone missing the deadline would be in fact she had taken a 15 minute break. Dunn told terminated. Hutton took time off from her full-time job to Blankenship that she could verify it on the computer, but attend the scheduled August 30, 2000 viewing, but was told Blankenship allegedly replied, “It doesn’t matter, they said that the training had been canceled due to a computer foul-up. you did, so consider this a verbal warning.” Blankenship then She was also told by her supervisor Denise Trusty that she asked Dunn if she had taken a phlebotomy tray outside while would be called to reschedule the training and that she had to smoking, and Dunn admitted that she had. Blankenship complete the training before returning to work. Again, repeated that Dunn could consider this a verbal warning. Hutton was not informed of any deadline to complete the 3. The Chilling Effect on Employees training. Evidence in the form of several affidavits was presented
A week later, after her supervisor still had not called her, indicating that these actions by the Hospital had created a Hutton called Trusty to ask about the training. Trusty told her chilling effect on the employees’ Union support. Registered that she did not have a date yet but told Hutton to call back nurse Patricia Hollifield averred in an affidavit that she knew the following Monday. Hutton called on the following of several strikers, including Gabbard, who were fired after Monday, September 11, 2000, and left a message but received
the strike and that she was very careful thereafter to avoid no return phone call. The following day, she received a letter openly supporting the Union; she also indicated that other from CFO Randy Cooper informing her that she was being employees wanted to “lay low” about Union support for fear purged from the Hospital’s PRN listing because she had No. 02-5371 Ahearn v. Jackson Hospital Corp. 11 12 Ahearn v. Jackson Hospital Corp. No. 02-5371 of retaliatory discharge. Registered nurse Anita Turner, who resign before changing status, and that no one notified had been threatened by Obenchain with license revocation, Sizemore of any possible adverse consequences related to her averred that she felt like a “nervous wreck” based on her request. Regarding Gabbard’s discharge, the court found that knowledge of several firings and Obenchain’s threats, and she evidence existed in the record indicating that the Hospital’s consequently accepted a job at another hospital. Registered asserted reason for the termination was pretextual inasmuch nurse Shirley White had also experienced a chilling effect as a similarly-situated employee had received less harsh after learning of several firings (including Gabbard’s), treatment and the Hospital’s policies did not contemplate causing her to believe that “the [H]ospital wants to fire all the discharge for first-time unexcused absences. Regarding strikers.” She averred that she had spoken to other employees Hutton’s discharge, the court found reasonable cause for a who felt the same way. Although she had worn a button and § 8(a)(1) violation inasmuch as Hutton’s discharge closely attended union meetings prior to the strike, she never wore a followed her strike participation and because she was not union button again after the strike, for fear of retaliation. She notified of any adverse consequences for failure to complete also indicated that she never saw other employees wearing training by a certain date. union buttons after the strike. Additionally, Janie Jenkins
The district court also found that granting a temporary testified that, although she had worn a union button regularly injunction for interim reinstatement of the terminated for six months preceding the strike, she only wore a union employees was “just and proper” because the threats of button for a week following the strike and stopped thereafter, getting fired, closely followed by actual firings, was as did virtually all of her colleagues. She added that because “inherently chilling to union support,” and because the four of the discharges, the threats, the resignations, and the affidavits suggested that the Hospital’s adverse actions were Hospitals’ refusal to bargain, she “felt really discouraged and
“actually having a chilling effect on union support.” (J.A. at felt like the union couldn’t really help us.” (J.A. at 113.) She 90.) The district court therefore ordered the Hospital to also averred that she was afraid of being fired for any small reinstate Sizemore, Gabbard, and Hutton, as well as the other error, and that she had talked with several other employees adversely-affected employees. The court also ordered the who felt the same way.
Hospital to cease and desist from unlawfully threatening its D. The District Court’s Decision employees with termination, engaging in surveillance of striking employees, and altering the employees’ break In a January 18, 2002 order, the district court found that the schedule without notice and opportunity for union bargaining. Board had established reasonable cause to believe that the Hospital had committed § 8(a)(1) violations with respect to E. The Administrative Law Judge’s Administrative the firing of six employees (including the three firings at issue Decision in this appeal), as well as the Hospital’s repeated threats of On February 20, 2002, the administrative law judge (ALJ) job loss or license revocation, intimidating anti-union signs
presiding over the administrative proceedings with respect to during the strike, unlawful video surveillance of the strikers, the Hospital’s actions, also found that the Hospital had and alteration of employees’ break schedules after the strike. unlawfully terminated Sizemore, Gabbard, and Hutton. The Regarding Sizemore’s discharge, the district court found ALJ rejected the Hospital’s argument that Sizemore failed to that Sizemore’s August 15, 2000 letter requesting a change in follow the resignation and reinstatement policy, finding status was not a resignation, that no policy required a nurse to instead that Sizemore did not resign but only requested a No. 02-5371 Ahearn v. Jackson Hospital Corp. 13 14 Ahearn v. Jackson Hospital Corp. No. 02-5371 change of status. The ALJ was particularly persuaded by the The Hospital devotes a large segment of its brief to fact that Obenchain initially granted Sizemore’s request and challenging the district court’s use of the “reasonable placed her on the schedule but later crossed her off. The ALJ cause/just and proper” standard, which this Court has also found that Gabbard’s actions were not subject to employed with respect to § 10(j) injunctions. Specifically, termination under the Hospital’s policies inasmuch as she the “reasonable cause/just and proper” standard requires that gave more than two hours’ notice of her intended personal a district court find that (1) there is “reasonable cause” to absence and that similarly situated employees had received believe that unfair labor practices have occurred, and that better treatment. Finally, the ALJ found that Hutton’s (2) injunctive relief with respect to such practices would be termination was discriminatory, based on four factors: (1) the “just and proper.” Schaub v. West Mich. Plumbing & Hospital’s inconsistent testimony about the deadline for Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001). The watching the compliance video, (2) the Hospital’s failure to Hospital argues that the more “traditional” framework for inform Hutton that she would be terminated if she did not reviewing petitions for injunctions is correct in this context watch the video, (3) the Hospital’s false accusation that and urges this Court to reverse on this basis. The traditional Hutton made no attempt to watch the video, when in fact she framework is the four-factor test employed by this Court in had shown up as scheduled and made several follow-up phone the context of other petitions for injunctions, and requires a calls to no avail, (4) the Hospital’s false accusation that district court to consider (1) whether the moving party has a Hutton was difficult to reach, and (5) “significant evidence of substantial or strong likelihood of success on the merits; disparate treatment.” Indeed, the ALJ refused to credit any of (2) whether the moving party would otherwise suffer the Hospital’s representatives’ testimony on the matter irreparable injury; (3) whether the issuance of a preliminary inasmuch as it was “replete with falsehoods and with obvious injunction would cause substantial harm to others; and and unexplained inconsistencies.” (J.A. at 63.) The ALJ also (4) whether a preliminary injunction would serve the public found that the Hospital’s threats, video surveillance, and interest. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. intimidating signs activity constituted § 8(a)(1) violations, 2000). We disagree with the Hospital. and that the unilateral break schedule changes violated A. The “Reasonable Cause/Just and Proper” Inquiry is § 8(a)(5) of the NLRA.
Supported by Longstanding Sixth Circuit Precedent Unlike the district court, however, the ALJ did not find the that a Panel Cannot Overrule discipline of Sally Dunn, who had been smoking a cigarette We note initially that this circuit has consistently used the while handling blood samples, violated § 8(a)(3). In light of “reasonable cause/just and proper” standard. A contrary this ruling, Petitioner no longer argues in favor of the district holding of this panel would contravene the rule that one panel court’s ruling on this point.
cannot overrule another panel; thus the “reasonable cause/just I. and proper” standard may only be overruled by this Court sitting en banc or the Supreme Court. See United States v. The issue of whether a district court applied the correct Moody, 206 F.3d 609, 615 (6th Cir. 2000) (citing Salmi v. legal standard is a legal question, which this Court reviews Secretary of Health & Human Servs., 774 F.2d 685, 689 (6th de novo. United States v. Willis, 257 F.3d 636, 642 (6th Cir. Cir. 1985)). 2001) (citing In re Sorah, 163 F.3d 397, 400 (6th Cir. 1998)) (internal citation omitted). No. 02-5371 Ahearn v. Jackson Hospital Corp. 15 16 Ahearn v. Jackson Hospital Corp. No. 02-5371
contain the “just and proper” language. [1] The Hospital may Although the Hospital claims that the U.S. Supreme Court has ruled to the contrary on this issue, it only cites realize that these cases are not on point, given that it asks the Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) for this Court to “ revisit the current 10(j) standard” and “ abandon []” proposition. The Hospital fails to explain the many Sixth it “in favor of a traditional balancing test.” (Hospital Br. at Circuit cases that have been decided using the “just and 17) (emphasis added). proper” standard in the twenty years since Weinberger . See, B. The “Reasonable Cause/Just and Proper Standard” e.g., Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26 (6th Properly Takes into Account a Hospital’s Interests Cir. 1988); Gottfried v. Sheet Metal Workers’ Int’l Ass’n, Local Union No. 80 , 927 F.2d 926 (6th Cir. 1991); Kobel v.
The Hospital also suggests that the “reasonable cause/just United Paperworkers Int’l., 965 F.2d 1403, 1409 n.3 (6th Cir. and proper” standard does not properly take into account the 1992); Schaub , 250 F.3d at 669. If the current 10(j) standard special interests of a hospital in maintaining a safe were in clear contravention of Supreme Court precedent, it environment and optimal patient care, and that this Court seems unlikely that this or any other circuit would have could alternatively carve out a special exception for hospitals. continued to adhere to it for two decades without concern. We disagree. The Hospital also asserts that our decision in EEOC v. The case law reflects that the “reasonable cause/just and Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1981) proper” standard adequately protects the special interests of compels us to use the “traditional” standard. Anchor Hocking hospital employers in maintaining optimal patient care. For held that Title VII’s provision authorizing the Equal instance, in Frye v. District 1199, 996 F.2d 141 (6th Cir. Employment Opportunity Commission (“EEOC”) to request 1993) ( per curiam ), the district court granted an injunction temporary injunctive relief does not permit a district court to limiting the amount of picketing in which workers could issue a preliminary injunction without the traditional showing engage around a nursing home. The union appealed, and the of irreparable injury. Id . at 1040-41. Anchor Hocking thus Sixth Circuit affirmed, holding that the injunction was rejected the EEOC’s suggested standard that, upon the filing appropriate. Among other things, it observed that “when of a discrimination charge–a prima facie showing of a Title Congress amended the NLRA in 1974 to cover health care VII violation–and a district court’s determination that institutions, ‘there was a recognized concern for the need to “prompt judicial action is necessary,” a preliminary injunction must issue. Id. at 1040-41. However, Anchor Hocking dealt with a different statute, specifically, § 706(f)(2) of Title VII flexibility in a variety of factual circumstances. No. 02-5371 Ahearn v. Jackson Hospital Corp. 19 20 Ahearn v. Jackson Hospital Corp. No. 02-5371 the district court, in considering a § 10(j) petition, “to district court “need not resolve conflicting evidence between adjudicate the merits of the unfair labor practice case.” Id. the parties” or make credibility determinations. Id. (citations (citing Fleischut, 859 F.2d at 28.) omitted). “Rather, so long as facts exist which could support
the Board's theory of liability, the district court's findings The alleged violations at issue pertain to§ 8(a)(1), (3), and cannot be clearly erroneous.” Id. (citations omitted). Indeed, (5) of the NLRA, 29 U.S.C. § 158(a), which provides as fact-finding is inappropriate in the context of a district court’s follows: consideration of a 10(j) petition. Ky. May Coal Co., 89 F.3d at 1239. It shall be an unfair labor practice for an employer-- Additionally, a “district court may rely upon both direct and (1) to interfere with, restrain, or coerce employees in the circumstantial evidence to determine the motive of the exercise of the rights guaranteed in section 157 of this employer with respect to the challenged conduct.” Schaub , title; 250 F.3d at 970 (citing NLRB v. Vemco, Inc., 989 F.2d 1468, 1477 (6th Cir. 1993)). For instance, “‘the proximity in time
. . . between recent protected activity and measures taken against the employee engaged in the activity lend support to the
(3) by discrimination in regard to hire or tenure of inference of an unfair labor practice.’” Id. (quoting Jim employment or any term or condition of employment to Causley Pontiac v. NLRB, 620 F.2d 122, 125 (6th Cir. 1980)). encourage or discourage membership in any labor We reiterate that review of the district court’s “reasonable organization . . .; cause” determination comes under the clear error standard. Frankel, 818 F.2d at 493.
. . . The statute at issue is § 8(a)(3) of the NLRA, which (5) to refuse to bargain collectively with the prohibits an employer from, “discriminati[ng] in regard to representatives of his employees, subject to the hire or tenure or employment to . . . discourage membership provisions of section 159(a) of this title. in any labor organization . . . .” 29 U.S.C. § 158(a)(3). This Court has held that an employer’s termination of an employee
29 U.S.C. § 158(a). for engaging in union activity violates § 8(a)(3). See Birch Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175,
1. Reasonable Cause 1179 (6th Cir. 1985). Petitioner’s burden of showing “reasonable cause” is The relevant question is whether the employer’s “relatively insubstantial,” inasmuch as the proof requires only termination of Sizemore, Gabbard, and Hutton was motivated that the Board’s legal theory underlying the allegations of by anti-union animus. NLRB v. Cook Family Foods, Ltd., 47 unfair labor practices be “substantial and not frivolous” and F.3d 809, 816 (6th Cir. 1995). If Petitioner demonstrates that that the facts of the case be consistent with the Board’s legal the termination was motivated at least in part by anti-union theory. Schaub , 250 F.3d at 969 (quoting and citing animus, the burden shifts to the Hospital to show that it would Fleischut, 859 F.2d at 28, 29). This Court reviews the legal have fired the employee anyway. NLRB v. Transp. Mgmt. theory de novo and the facts for clear error. Id. (citing Kobell, Corp., 462 U.S. 393, 399-403 (1983). 965 F.2d at 1407). In reviewing the supporting facts, a No. 02-5371 Ahearn v. Jackson Hospital Corp. 21 22 Ahearn v. Jackson Hospital Corp. No. 02-5371
We believe there is more than sufficient evidence in this Katz , 369 U.S. 736, 743 (1962); NLRB v. Sanitary Bar & record to demonstrate that the Hospital professed a strong Burlap Co., 406 F.2d 750, 752 (6th Cir. 1969) (citations anti-union animus, given evidence of supervisors’ threats to omitted). That was not done here and the district court fire strikers, the Hospital’s generally hostile attitude toward properly found reasonable cause to believe the Hospital the Union, its refusal to engage in collective bargaining, and violated the NLRA by unilaterally changing the employees’ its display of anti-union signs and use of surveillance during break schedules after the strike. See 29 U.S.C. § 158(d). the strike. Moreover, Gabbard was terminated shortly after 2. Just and Proper returning to work from the strike, and Sizemore and Hutton were terminated before they were even able to return to work.
However, finding reasonable cause is not sufficient–the Finally, there is plenty of evidence tending to show the remedy of a temporary injunction must also be just and pretextual nature of the Hospital’s reasons for firing each of proper. In other words, “[c]ourts must be mindful that 'the the three employees. With respect to Sizemore, the Hospital relief to be granted is only that reasonably necessary to claimed that Sizemore failed to follow the proper 15 day preserve the ultimate remedial power of the Board and is not resignation notice policy, yet it is clear from her August 15, to be a substitute for the exercise of that power.’” Schaub v. 2000 letter that she had not resigned but rather had requested Detroit Newspaper Agency, 154 F.3d 276, 279 (6th Cir. 1998) a change in work status, which did not require 15 day notice. (citing Gottfried v. Sheet Metal Workers’ Int’l Ass’n, Local With respect to Gabbard, the existing policies indicated that Union No. 80, 927 F.2d 926, 928 (6th Cir. 1991)). Thus, an unexcused personal absence generally was penalized by “[t]he ‘just and proper’ inquiry . . . turns primarily on whether methods short of termination, and indeed a similarly-situated a temporary injunction is necessary ‘to protect the Board’s person had not been terminated. Finally, the Hospital’s remedial powers under the [NLRA].’” Id. (citing Calatrello misrepresentations with respect to Hutton, by suggesting that v. Automobile Sprinkler Corp. of America, 55 F.3d 208, 214 she made no effort to attend the videotape viewing, along (6th Cir. 1995)). with the Hospital’s failure to communicate appropriate deadlines and/or to warn Hutton that not viewing the
We hold that the district court did not abuse its discretion compliance videotape would result in termination, clearly in finding interim reinstatement for the three employees to be demonstrated the lack of plausibility of its reasons for her “just and proper.” As the district court noted, multiple discharge. Moreover, the ALJ’s February 20, 2002 ruling terminations of striking employees directly following the end lends further support to the validity of the district court’s of the union strike would have an inherently chilling effect on decision on these issues. Thus, reasonable cause is abundant other employees. See Frankel, 818 F.2d at 495-96 (noting the with regard to these three terminations, and the district court appropriateness of an interim reinstatement in the NLRB did not clearly err with respect to its fact-finding on the context because an alternative result “risk[s] a serious adverse reasonable cause issue. impact on employee interest in unionization”) (quoting Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1053 (2d Cir.
As to the Hospital’s changes to employees’ break schedule 1980)); see also Pascarell v. Vibra Screw, 904 F.2d 874, 880 after the strike, we agree with the district court that the law is (3d Cir. 1990) (noting that the employer’s discharge of the well settled that an employer may not make changes to terms entire bargaining committee rendered the chilling effect on or conditions of employment without first affording the other non-activist employees “patent”). employee’s bargaining representative notice and opportunity to negotiate regarding the proposed changes. See NLRB v. No. 02-5371 Ahearn v. Jackson Hospital Corp. 23 24 Ahearn v. Jackson Hospital Corp. No. 02-5371
The four affidavits presented to the district court indicated The Hospital also complains that the affidavits did not that the terminations indeed did have a chilling effect on reference the affiants’ knowledge of Sizemore and Hutton’s union activity, inasmuch as the employees stopped wearing discharges; they only referenced Gabbard’s discharge. Thus, union buttons, spoke in hushed tones about union activities, the Hospital claims, no proof had been submitted that and feared reprisal. Some affidavits spoke of the low morale Sizemore and Hutton’s terminations actually created a and overall sense that the Union could not assist them as chilling effect on the other employees. However, this reactions to the multiple firings closely following the strike. argument ignores the fact that there were other reasons
supporting a “just and proper” finding; for instance, the It is also noteworthy that these three terminations represent district court determined that the terminations themselves the culmination of several months of severe hostility on the were inherently chilling inasmuch as the reasons provided Hospital’s part toward union activity, the strike, and any were pretextual. The Hospital fails to persuade us on this argument. [3] collective bargaining efforts. These are also relevant factors. See Arlook In re NLRB v. S. Lichtenberg & Co., 952 F.2d 367, 373-74 (11th Cir. 1992) (noting that the history of The Hospital also argues that the “just and proper” burden management resistance to unionization, various unfair labor cannot be established for Sizemore because granting an practices, and numerous discharges also supported interim injunction seeks to restore the status quo, and because relief to prevent further damage). Indeed, in this case, the Sizemore never actually held the PRN position before she was Union was quite new and had not even signed its first terminated, she could only be returned to her old position. contract, “mak[ing] bargaining units highly susceptible to We find this argument meritless based on our previous management misconduct.” Id. at 373. discussion of the “just and proper” standard.
The Hospital laundry list of various arguments against We conclude, therefore, that the district court did not abuse finding that the “just and proper” burden has been satisfied, its discretion in finding that Petitioner met the burden to show but none of these arguments are particularly strong. We that interim relief was just and proper. believe discussion of all of these arguments is unnecessary given our prior discussion in this case. Nevertheless, we shall briefly discuss some of the Hospital’s arguments.
For instance, the Hospital complains that the district court did not adequately consider the special circumstances [3] The Hospital also complains that the affidavits should never have surrounding a health care facility’s interest in maintaining been received in evidence anyway inasmuch as some of them contained quality patient care. Yet in this case none of these three hearsay. However, this argument is placed in a footnote and the brief employees were fired for defects in patient care. They were provides no legal supp ort for this argum ent. W e do not be lieve the Hospital has properly p laced this issue into contention for purp oses o f this fired for failing to follow certain procedures completely
app eal. To the extent that the Hospital seeks to incorporate by reference unrelated to patient care issues. The district court did not its argum ents from the district court brief, this attempt fails. engage in any lengthy discussion about patient care interests See Northlan d Ins. Co. v. Stew art Title Gu ar. Co., 327 F.3d 448 , 452 (6th because the facts in this case did not merit such discussion. Cir. 2003) (“The incorporation by reference of arguments made at various stages of the proceeding in the district court does not comply with the Federal Rules of Appellate Procedure” and therefore such arguments are waived).
No. 02-5371 Ahearn v. Jackson Hospital Corp. 25
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
NOTES
[1] of the Civil Rights Act of 1964 (as amended), 42 U.S.C. Title VII provid es, in releva nt part, tha t “[w]henever a charge is § 2000e-5(f)(2), and the Court undertook a careful statutory filed with the Commission and the Commission concludes on the basis of analysis before rejecting the EEOC’s argument that a showing a preliminary investigation that pro mpt judicial action is necessary to carry out the purposes of this Act, the Commission . . . may bring an of irreparable injury is not necessary. And, contrary to the action for appropriate temporary or preliminary relief pending final Hospital’s contentions, Title VII does not have the same disposition of such charge.” 42 U.S.C. § 2000e-5(f)(2). Section 10(j) of language as the NLRA: in particular Title VII does not the NLRA, on the other hand, indicates that “[t]he Board shall have power . . . to petition any United States district court . . . for app ropriate temporary relief or restraining order. . . . [T]he court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper .” 29 U.S.C. § 160(j) (emp hasis added). No. 02-5371 Ahearn v. Jackson Hospital Corp. 17 18 Ahearn v. Jackson Hospital Corp. No. 02-5371 avoid disruption of patient care whenever possible.’ . . . standard but also incorporating the traditional elements, such Accordingly, a court may consider the special characteristics as irreparable injury, into the “just and proper” prong of the of health care institutions when determining an appropriate analysis). However, other circuits have retained the standard. remedy.” Id. at 145 (citations omitted). See, e.g., Sharp v. WEBCO Indus., Inc., 265 F.3d 1085, 1089-90 (10th Cir. 2001); Hoffman ex rel. N.L.R.B. v. Inn The most likely reason that the district court did not discuss Credible Caterers, Ltd., 247 F.3d 360, 364-65 (2d Cir. 2001). this “patient care” theory at length is because this case does Therefore, we are not alone in retaining the “reasonable not raise health or safety concerns. It is not as if employees cause/just and proper standard.” Sizemore, Gabbard, and Hutton were fired for engaging in dangerous behavior that could negatively impact the welfare II. of the Hospital’s patients. The Hospital makes much of the We next decide whether the district court committed error district court’s decision with respect to Sally Dunn, who had when it granted an injunction for the Petitioners in this case. been disciplined for smoking while carrying a tray of blood As we just stated, the “reasonable cause/just and proper” test samples, but this has essentially become a non-issue requires a district court to find that there is “reasonable cause” inasmuch as the ALJ ruled in favor of the Hospital with to believe that the employer engaged in unfair labor practices, respect to the discipline of this employee and the Board has and that the relief requested is “just and proper.” We review decided not to pursue her claim on appeal. Because we the “reasonable cause” finding for clear error. Gottfried v. believe that sufficient flexibility exists in the application of Frankel, 818 F.2d 485, 493 (6th Cir. 1987) (citing Kobell v. the “reasonable cause/just and proper standard” to Suburban Lines, Inc., 731 F.2d 1076, 1084 (3d Cir. 1984)). differentiate hospitals from other types of employers to the This Court reviews the “just and proper” determination for an extent necessary to protect a hospital’s special circumstances, we reject the hospital’s rationale.
[2] abuse of discretion. Schaub , 250 F.3d at 970 (citing Kobell v. United Paperworkers Int’l Union, AFL-CIO, CLC, 965 We pause to observe that a number of circuits have F.2d 1401, 1409-10 (6th Cir. 1992)). overhauled the “reasonable cause/just and proper” standard, A. “Reasonable Cause/Just and Proper” instead adopting the “traditional” test. See, e.g., Pye v. Sullivan Bros. Printers, Inc., 38 F.3d 58, 64 n.7 (1st Cir. The prevailing standard district courts in the Sixth Circuit 1994); Miller v. California Pac. Med. Ctr., 19 F.3d 449, employ when considering a § 10(j) petition is the “reasonable 456-59 (9th Cir. 1994) ( en banc ); Kinney v. Pioneer Press, cause/just and proper” standard. Under this standard, the 881 F.2d 485, 489-91 (7th Cir. 1989); see also Sharp v. district court must find that (1) there is “reasonable cause” to Parents in Cmty. Action, Inc., 172 F.3d 1034, 1038 (8th Cir. believe that the employer engaged in unfair labor practices, 1999) (retaining the “reasonable cause/just and proper” and (2) injunctive relief is “just and proper.” NLRB v. Ky. May Coal Co., 89 F.3d 1235, 1239-40 (6th Cir. 1996) (citing Fleischut, 859 F.2d at 29). A district court also must be
[2] At oral argument, counsel for the Ho spital argued that the current mindful that “[p]roceedings pursuant to § 10(j) are “reaso nable cause/just and proper” standard “handcuffs” district courts in subordinate to the unfair labor practice proceedings to be deciding whether to grant an injunction beca use a district court is not heard before the Board.” Schaub , 250 F.3d at 969 (citing perm itted to consider o utside testimony under the stand ard. C ontrary to the Hospital’s argument, we think the current stand ard has shown its Fleischut, 859 F.2d at 28). Consequently, it is not the job of