SINAI HOSPITAL OF BALTIMORE, INC., d/b/a VSP v. NATIONAL LABOR RELATIONS BOARD
No. 21-1642, No. 21-1683
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
May 10, 2022
PUBLISHED. Argued: March 10, 2022. Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
and
1199 SEIU UNITED HEALTHCARE WORKERS EAST,
Intervenor.
No. 21-1683
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
SINAI HOSPITAL OF BALTIMORE, INC., d/b/a VSP,
Respondent.
and
1199 SEIU UNITED HEALTHCARE WORKERS EAST,
Intervenor.
Petition for review denied, and cross-application for enforcement granted, by published opinion. Judge King wrote the opinion, in which Judge Niemeyer and Judge Motz joined. Judge Niemeyer wrote a separate concurring opinion.
ARGUED: J. Eric Paltell, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Petitioner/Cross-Respondent. Eric C. Weitz, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Ashley Evangeline Macaysa, ABATO, RUBENSTEIN & ABATO, P.A., Baltimore, Maryland, for Intervenor. ON BRIEF: Jordan F. Dunham, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Petitioner/Cross-Respondent. Jennifer Abruzzo, General Counsel, Peter Sung Ohr, Deputy General Counsel, Ruth E. Burdick, Deputy Associate General Counsel, David Habenstreit, Assistant General Counsel, Kira Dellinger Vol, Supervisory Attorney, Jared D. Cantor, Senior Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. James R. Rosenberg, ABATO, RUBENSTEIN & ABATO, P.A., Baltimore, Maryland, for Intervenor.
Sinai Hospital of Baltimore, Inc.‘s Vocational Services Program (“VSP“) seeks judicial review of a decision and order of the National Labor Relations Board (the “Board“) finding that VSP engaged in unfair labor practices, in contravention of
I.
A.
VSP is a department of Sinai Hospital, an acute care facility in Baltimore, Maryland, owned by LifeBridge Health, Inc. VSP encompasses a vocational and career-training program as well as a separate contracts and employment program, both of which are intended to assist individuals facing barriers to employment with preparation for competitive employment opportunities. Disabled individuals may be referred to VSP‘s vocational program — which offers career assessments, job skills training, and internships
As part of its employment program, VSP has contracted with the Social Security Administration (the “SSA“) since at least 1987 to provide janitorial staffing at SSA facilities. VSP‘s contract with the SSA is governed by the federal AbilityOne program, a creation of the Javits-Wagner-O‘Day Act (the “Javits Act“) designed to employ disabled persons in providing commodities and services to the federal government. The terms of the Javits Act require, inter alia, that at least 75% of the janitors that VSP employs at its contract sites be “severely disabled.” See
B.
On July 3, 2019, the Union filed a petition with the Board seeking to represent the VSP janitors working at the SSA facility. The Union petitioned to represent a bargaining unit consisting of “[a]ll full time regular and part time janitors and housekeepers employed by [VSP] at the [SSA facility],” without regard for disability status. See A.R. 257-58. VSP contested the Board‘s jurisdiction over the proposed unit of janitors, asserting that the
The Board thereafter conducted two representation hearings in July and September 2019. The Board received testimony and exhibits from four VSP witnesses, including case manager White, as well as from two janitors employed at the SSA facility — one disabled, and one nondisabled. VSP and the Union also filed formal briefs with the Board following each hearing.
On November 29, 2019, the Acting Regional Director for the Board‘s Region 5 issued a Decision and Direction of Election resolving that the disabled janitors engaged by VSP are in fact statutory “employees.” See A.R. 819-45. After assessing the factors set forth in the Board‘s Brevard decision, the Decision and Direction of Election concluded that VSP had failed to satisfy its burden of demonstrating a “primarily rehabilitative” employment relationship, and that VSP‘s relationship with the disabled janitors was instead more appropriately classified as “typically industrial.” Id. at 820-21 (citing Brevard, 342 NLRB at 984). The Acting Regional Director acknowledged that certain evidence at the
Accordingly, the Acting Regional Director ruled that both the disabled and nondisabled janitors working at the SSA facility are “employees” as contemplated by the Act and ordered a Board-supervised secret ballot election. See A.R. 839-41. The Union prevailed in that election by a vote of 28 to 13 and, on December 30, 2019, the Acting Regional Director certified the Union as the exclusive collective bargaining representative of the VSP janitors. VSP sought review of the Decision and Direction of Election‘s employee-status determination, but a three-member panel of the Board denied that request on May 27, 2020, citing a lack of substantial issues warranting review.
C.
Notwithstanding the Union‘s successful election and certification, VSP refused to recognize it as the janitors’ bargaining representative or to engage in the bargaining process. The Union thus filed an unfair labor practice charge with the Board on September 11, 2020, and the Board‘s General Counsel thereafter issued a complaint alleging that VSP had violated
On May 25, 2021, a three-member panel of the Board granted the General Counsel‘s motion for summary judgment, ruling in its Bargaining Order that VSP‘s refusal to bargain with the Union constituted an unfair labor practice under the Act. The Bargaining Order directed VSP to recognize the Union as the certified representative of the janitors working at the SSA facility; to engage in the bargaining process at the request of the Union; to refrain from intrusions on the rights afforded to the janitors by
VSP timely filed a petition for review of the Bargaining Order with this Court on June 2, 2021. Because the Bargaining Order was based in part on the Board‘s determination in the 2019 Decision and Direction of Election that the disabled VSP janitors are statutory “employees,” that determination and the associated administrative record are also before the Court in this matter. See
II.
VSP now advances its prior position — asserted in the underlying representation and unfair labor practice proceedings — that its relationship with the disabled janitors working at the Baltimore County SSA facility is “primarily rehabilitative” in nature, and that the Board‘s Decision and Direction of Election incorrectly classified the disabled janitors as statutory “employees.” VSP argues that the Board therefore lacked jurisdiction to certify the Union as the janitors’ collective bargaining representative and that the Bargaining Order was in error by association.
We review the Board‘s findings of fact — including the status of workers as “employees” within the meaning of the Act — only to determine if those findings are “supported by substantial evidence in the record as a whole.” See Lee v. NLRB, 393 F.3d 491, 494 (4th Cir. 2005) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). “Substantial evidence” means “more than a scintilla of evidence, but less than a preponderance.” See Pac Tell Grp., Inc. v. NLRB, 817 F.3d 85, 90 (4th Cir. 2015). As a result, our review of the Board‘s decision is “limited,” see Tenocap, LLC v. NLRB, 1 F.4th 304, 312 (4th Cir. 2021), and we “extend considerable deference to the NLRB‘s interpretation of [the Act‘s definition of ‘employee‘] and its application of [that] provision
III.
A.
Under Board precedent, the statutory “employee” status of disabled individuals working in rehabilitative vocational settings turns on whether the relationship between worker and putative employer is best characterized as “typically industrial” or instead “primarily rehabilitative.” See Brevard Achievement Ctr., Inc., 342 NLRB 982, 983-84 (2004); Goodwill Indus. of Denver, 304 NLRB 764, 765 (1991). The Board declines to assert jurisdiction over “primarily rehabilitative” employment relationships as a prudential matter, in recognition of the fact that the Act “contemplates a primarily economic relationship between employer and employee,” wherein “employees who do not possess
The “typically industrial” versus “primarily rehabilitative” determination calls for a case-by-case factual assessment, and “the party seeking . . . to exclude otherwise eligible employees from the coverage of the Act” bears the burden of proving a “primarily rehabilitative” employment relationship to the Board. See Goodwill Indus. of N. Ga., Inc., 350 NLRB 32, 35 (2007). In conducting that analysis, the Board weighs the following, non-exhaustive list of factors identified in its Brevard decision:
- The existence of employer-provided counseling, training, or rehabilitative services;
- The existence of any production standards;
- The existence and nature of disciplinary procedures;
- The applicable terms and conditions of employment (particularly in comparison to those of nondisabled individuals employed at the same facility); and
- The average tenure of employment, including the existence/absence of a job-placement program.
B.
In concluding that VSP had failed to meet its burden of demonstrating a “primarily rehabilitative” employment relationship, the Board resolved that the disabled janitors’ affiliation with VSP is more akin to that found in traditional private sector employment settings, such that the Act‘s leading purpose of restoring balance to bargaining power disparities is served by classifying the janitors as statutory “employees.” See A.R. 839. To be sure, the Board acknowledged that certain testimony received during its representation hearings pointed toward a “primarily rehabilitative” relationship. But it ultimately ruled that “[those] facts are insufficient to overcome the other facts supporting a traditionally industrial relationship” and that each Brevard factor weighed against finding a principally “rehabilitative” connection between VSP and its disabled janitors. Id. Our review of the record fully supports the Board‘s determination.
1.
The Board first found that the terms and conditions of employment for VSP‘s disabled and nondisabled janitors are “virtually indistinguishable,” thereby suggesting a “typically industrial” relationship under Brevard. See A.R. 828. The Board relied on evidence indicating that all janitors at the SSA facility — regardless of disability status — are assigned to shifts of the same length; receive equivalent wages and benefits; have the same job description; and are afforded equal amounts of break time. The Board also observed that a 90-day probationary period applies to all newly hired janitors and that VSP
VSP‘s case manager, Veronica White, maintained that although all janitors have the same job description, disabled janitors may have their assigned tasks modified if their disabilities interfere with successful completion of those tasks. But the two janitors who appeared at the Board‘s representation hearings — Gregory Parker and Wilzona Tyler — refuted White‘s testimony, relating that they had not previously witnessed any task modifications because of a colleague‘s disability-related difficulties. The Board observed that White does not work full-time at the SSA facility and is there only “one or two times a week,” and also that VSP neglected to call any supervisors or other personnel working at the SSA facility daily. See A.R. 829. Accordingly, the Board accorded “greater weight” to Parker and Tyler‘s testimony and found that, in any event, no testimony indicated that VSP‘s disabled janitors could “work at their own pace” as in the Board‘s Brevard decision, where disabled workers and their employer were held to possess a “primarily rehabilitative” relationship. Id. at 827-28; Brevard, 342 NLRB at 983. Despite some inconsistency regarding the lenience afforded to VSP‘s disabled janitors, substantial
2.
The evidence presented to the Board made clear that VSP does provide certain counseling and rehabilitative services to its disabled (and nondisabled) janitors, primarily through White. As previously noted, White works at the SSA facility only one to two days per week; she is otherwise “on call” while working at other VSP facilities. See A.R. 138-39. White provides a range of services to all janitors at the SSA facility — including assistance with budgeting, locating housing, scheduling medical appointments, and drafting resumés — although janitors are not required to meet with White on any fixed schedule. No evidence indicates that VSP employs any full-time job trainers, mental health counselors, or other comparable personnel at the SSA facility. VSP thus stands apart from the employer in the Board‘s 1991 Goodwill Industries of Tidewater decision, where the employer‘s retention of a full-time job-placement counselor and assignment of a dedicated skills trainer to each of its disabled janitorial employees informed the Board‘s finding of a “primarily rehabilitative” employment relationship. See 304 NLRB 767, 768-69 (1991).
The record shows that VSP‘s disabled janitors do have access to “job coaches” that visit the SSA facility and assist janitors in completing their work, but White testified that those coaches “work in conjunction with [VSP]” and “are generally employed through other agencies,” such as Baltimore nonprofit organizations. See A.R. 427-29. Accordingly, the Board discounted the job coaches as not qualifying as an “employer-
The Board acknowledged that, especially in view of White‘s services, “there are some rehabilitative elements” to VSP‘s relationship with its disabled janitors. See A.R. 831. The Board also observed, however, that White spends relatively little time at the SSA facility, that she is “essentially [VSP‘s] sole source of counseling, training, and rehabilitation services,” and that her services “would be more significant” if they were offered only to disabled janitors. Id. at 829, 831. Given that VSP appears to employ no full-time counseling personnel at the SSA facility and that its maintenance of a probationary period “is inherently contradictory to a rehabilitative relationship,” the Board resolved that Brevard‘s “counseling services” factor weighed against finding a “primarily rehabilitative” relationship. Id. at 833. Although we recognize that the record confirms VSP‘s provision of at least some rehabilitative and counseling services to its disabled janitors, we are satisfied that far more than “a scintilla of evidence” supports the Board‘s finding that VSP‘s services are not sufficient to establish a rehabilitative relationship standing alone. See Pac Tell Grp., Inc., 817 F.3d at 90.
3.
Among the Brevard factors, the Board appeared to find the one designated as “the existence and nature of disciplinary procedures” as the most problematic for VSP in
The Board credited testimony that disabled janitors who have committed infractions are often counseled by White instead of facing formal disciplinary measures, and the record confirms that disabled janitors are disciplined less frequently than their nondisabled colleagues. White testified, however, that nondisabled janitors are also given an opportunity to meet with her when disciplinary actions are under consideration, and the
4.
The Board lastly compared VSP‘s employment program to instances where “rehabilitative” employers maintain robust job-placement programs and where their disabled employees “routinely make the transition to competitive employment.” See A.R. 837. Although case manager White does provide some job-placement services to VSP‘s disabled janitors — including assistance with resumé drafting and conducting mock interviews — VSP does not employ a full-time job-placement coordinator and lacks a formal program designed to aid janitors in securing competitive employment outside the SSA facility. Nor are any time limits placed on janitors’ tenure at the facility. The record suggests that, on average, janitors stay with VSP for about 13 years. Id. at 54. And in the
Accordingly, the Board resolved that “it is significantly more likely that [VSP] will discharge one of its disabled workers at the [SSA facility] than help transition that worker to private competitive employment.” See A.R. 838. Once again, the record evidence pertaining to employee tenure and the lack of a noteworthy job-placement program lends strong support to the Board‘s ultimate employee-status determination.
C.
Based on the record as a whole, and in consideration of the deference that we must afford the Board‘s factual findings, substantial evidence supports the Board‘s determination in its Decision and Direction of Election that VSP failed to demonstrate a “primarily rehabilitative” employment relationship and that its disabled janitors are “employees” within the meaning of the Act. The Board therefore possessed jurisdiction to certify the Union as the bargaining representative of the VSP janitors. Because VSP admitted its refusal to bargain with the Union in contravention of
IV.
Pursuant to the foregoing, we deny VSP‘s petition for review and grant the Board‘s cross-application for enforcement of the Bargaining Order.
I have substantial doubt that categorically the disabled janitors employed by Vocational Services Program (VSP) at the Social Security Administration (SSA) site in Baltimore are entitled to collective bargaining rights under the National Labor Relations Act (NLRA). The NLRA‘s collective bargaining guarantees are intended to balance bargaining power disparities between employers and employees engaged in a traditional economic employment relationship. In recognition of this statutory intent, the National Labor Relations Board (NLRB) has held that workers engaged in rehabilitative — rather than economic or “typically industrial” — relationships with their employer are not “employees” entitled to collective bargaining rights under the NLRA. See, e.g., Brevard Achievement Ctr., Inc., 342 N.L.R.B. 982, 983–86 (2004). VSP, however, hired disabled janitors to provide services to the SSA pursuant to the AbilityOne Program authorized by the Javits-Wagner-O‘Day Act,
Collective bargaining is afforded by the NLRA to “restor[e] equality of bargaining power between employers and employees.”
The employees in this case, however, do not fit that profile. Here, the relevant workers are disabled janitors working for a government-determined wage under a program designed to rehabilitate their vocational skills and transition them to competitive economic employment. Thus, their relationship with their employer was not created for profit but rather for rehabilitative purposes, in accordance with the design of the Javits-Wagner-O‘Day Act.
The fundamental purpose of the Javits-Wagner-O‘Day Act is directed specifically at the rehabilitation of severely disabled persons in respect to employment. See
The record in this case shows that VSP is a distinct department of Sinai Hospital of Baltimore that exists to provide employment opportunities to individuals with disabilities with the goal of helping those individuals to “lift themselves up to find [job] placement”
Importantly, the NLRB has recognized the distinction between economic and rehabilitative employment relationships, concluding that rehabilitative employees are not statutory employees under the NLRA. See Brevard, 342 N.L.R.B. at 984–85; see also Balt. Goodwill Indus., Inc. v. NLRB, 134 F.3d 227, 229–31 (4th Cir. 1998) (per curiam). As the Board has explained, a rehabilitative employer‘s objective in hiring an individual is not to maximize its own profits or otherwise secure its own economic advantage, but rather to “rehabilitat[e] [the individual] and prepar[e] them for work in private competitive industry.” Goodwill Indus. of S. Cal., 231 N.L.R.B. 536, 537 (1977), overruled on other grounds by Goodwill Indus. of Denver, 304 N.L.R.B. 764 (1991). Thus, “[t]he conflicting interests present in traditional, primarily economic employment relationships are absent” in the rehabilitative context. Brevard, 342 N.L.R.B. at 985–86; see also Goodwill Indus. of S. Cal., 231 N.L.R.B. at 537 (describing how a rehabilitative employer‘s “primary objectives are the converse of a normal employer‘s objectives“). And because of this, the
The imposition of collective bargaining on relationships that are not primarily economic does not further the policies of the [NLRA]. The Act is premised on the view that in arms-length economic relationships, there can be areas of conflict between employers and employees that, if the parties cannot reach agreement, can be resolved through a contest of economic strength in the collective-bargaining process if the employees choose to bargain collectively. This premise is not well suited to a setting that is not primarily economic but primarily rehabilitative.
Id. at 985; see also Balt. Goodwill Indus., 134 F.3d at 229; Davis Mem‘l Goodwill Indus., Inc. v. NLRB, 108 F.3d 406, 410 (D.C. Cir. 1997).
In sum, while the NLRA protects employees in an economic relationship with their employers, disabled workers employed in compliance with the Javits-Wagner-O‘Day Act are necessarily in a rehabilitative relationship with their employers. Accordingly, I would approach this case with a strong presumption that disabled employees hired under a Javits-Wagner-O‘Day Act program, such as the one conducted by VSP, are not, as a class, “employees” within the ambit of the NLRA and therefore are not entitled to the collective bargaining rights afforded by the Act. See
Had VSP argued for such a categorical presumption before us, I would have welcomed the discussion and engaged both parties on that point. Instead, however, VSP focused its briefing on whether substantial evidence supported specific factual findings
ROBERT B. KING
UNITED STATES CIRCUIT JUDGE