Mt. Clemens General Hospital v. National Labor Relations Board

328 F.3d 837
Court of Appeals for the Sixth Circuit·Decided May 15, 2003·No. Nos. 01-2263, 01-2525·Published·Cited by 2 cases

Opinion

OPINION

MOORE, Circuit Judge.

Petitioner Mt. Clemens General Hospital (“Hospital”) seeks review of the National Labor Relations Board’s (“NLRB” or “Board”) decision that the Hospital’s prohibition of “No F.O.T.” buttons constituted an unfair labor practice in violation of the National Labor Relations Act (“Act”). The NLRB and, as an intervenor, the Union responsible for distributing the buttons seek enforcement of the NLRB’s decision and order.

The Union distributed “No F.O.T.” buttons to registered nurses (“RNs”) at the Hospital in support of its opposition to “forced overtime.” Soon after the buttons were distributed, the Hospital confiscated them. The Union grieved the Hospital’s decision, and an administrative law judge (“ALJ”) concluded that the prohibition was an unfair labor practice in violation of the Act. On review, the NLRB affirmed the ALJ’s decision. The Hospital filed a petition for review of the Board’s decision and order and the Board filed a cross-application for enforcement of its order. Because substantial evidence supports the Board’s conclusion that the Hospital improperly prohibited the “No F.O.T.” buttons, we DENY the Hospital’s petition for review and grant the NLRB’s cross-application to ENFORCE its order.

I. FACTS AND PROCEDURE

Mt. Clemens General Hospital provides in-patient and out-patient medical care in Mt. Clemens, Michigan. The Hospital’s registered nurses are represented by the RN Staff Council, Office and Professional Employees International Union, Local 40, AFL-CIO (“Union”).

Between February 1998 and February 2001, the Union’s relationship with the Hospital was governed by a collective bargaining agreement (“CBA”). The parties supplemented this agreement in December 1998 with a Letter of Understanding (“Letter”) addressing RN staffing issues.

The Letter permitted the Hospital to require nurses to work overtime where “patient safety” is involved. Joint Appendix (“J.A.”) at 98 (Letter). It further provided that the Hospital would pay bargaining unit members a double-time scheduling premium for overtime. During the double-time regime, the Hospital employed very little forced overtime because RNs volunteered for enough extra hours to meet the Hospital’s staffing needs.

When the double-time premium expired, the Union unsuccessfully tried to negotiate an extension. The Union filed a grievance with respect to the issue but did not arbitrate the matter when the grievance was rejected in November 1999. With the expiration of the double-time premium, the Hospital began to rely on forced overtime to staff its units. Some Hospital employees attempted to avoid forced overtime, and two were allegedly fired for submitting falsified medical documents stating that they could not work overtime. The Union also grieved the termination of these employees, but the terminations were upheld in arbitration. Debate about forced overtime continued.

[841] In October 1999, Union President, RN Vickie Kasper (“Kasper”), received a complaint from an RN who was required to work mandatory overtime. On October 4, 1999, Kasper wrote a memorandum to the RNs updating them on the most recent forced overtime dispute with the Hospital. She advised them,

Talking is not working. The traditional grievance process needs your additional support of showing management how united we are. This is YOUR chance to quietly show management your support of your fellow nurse by giving a VISUAL AID to your support. You need not explain anything to anyone. Your officers will inform management of this action. Consider this another way of showing your professional, proactive support of your Union in the effort to improve EVERY nurse’s work environment. We need to STOP THIS NOW. This community and this body of nurses need your SUPPORT NOW.

J.A. at 104 (Kasper Mem.). Kasper explained that she did not want individual RNs to debate the forced overtime issue with their supervisors or to discuss it with their patients and the patients’ families.

Kasper had “No F.O.T.” buttons made. The buttons depict a red “universal no” symbol, a circle bisected by a diagonal slash, over black letters spelling “F.O.T.” However, nothing on the buttons indicates that they have anything to do with the Union, or Union-management issues.1 The Union distributed the buttons as early as October 8, 1999, and RNs wore them throughout the Hospital. In the Intensive Care Unit, sixty to eighty buttons were distributed in the RNs’ mailboxes in the staff lounge.

Ten minutes after they learned of the buttons, Priscilla Horde (“Horde”), the Hospital’s Director of Employee Relations, and David Klinger (“Klinger”), the Hospital’s Vice-President of Human Resources, issued a directive banning them. Horde maintains that she was concerned that the ambiguous message of the buttons would prompt patients to ask questions and thus promote discussion of forced overtime between RNs and patients. She concluded that wearing the “No F.O.T.” button violated the following provision of the parties’ collective bargaining agreement:

The Union recognizes that procedures have been provided in this Agreement for the equitable settlement of grievances. Therefore, the Union and its members agree that neither will call, engage in, participate in, or sanction any strike, sympathy strike, stoppage of work, picketing of the Hospital, sit-down, sit-in, boycott or interfere with the conduct of the Hospital’s service for any reason whatsoever nor engage in any other activities that may disturb or interfere with the welfare of patients or operations of the Hospital.

J.A. at 56 (CBA Art. 8, § 2). Section one of the same Article explains that “nothing should interfere” with the Hospital’s provision of “continuous service to the public in providing proper treatment and nursing care for patients.” J.A. at 56 (CBA Art. 8, § 1).

The Hospital had permitted nurses to wear buttons on previous occasions with[842] out confiscating or banning them, including buttons that denoted Union activity or expressed Union-related themes.2 However, Horde instructed supervisors to require the RNs to remove the “No F.O.T.” buttons from their uniforms. Clinical Manager Kevin McLaughlin took the buttons from the RNs’ mailboxes in the ICU nurses’ lounge. The Hospital never told the RNs that the “No F.O.T.” button was barred only from patient-care areas or clarified where the RNs were permitted to wear the button. Moreover, the Hospital never returned the confiscated buttons.

When Kasper learned that the “No F.O.T.” buttons had been confiscated, she sent electronic mail to several individuals, warning that the Union would bring the issue to public attention through newspapers and bumper stickers. Kasper called Hospital management “idiots” and “fascist pigs,” and warned that she was willing to “die on this hill” for the issue. J.A. at 36 (Kasper E-mail). The Hospital claims that this was a “thinly veiled threat to respond to the button confiscation with acts of physical violence.” Hospital Br. at 15.

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Mt. Clemens General Hospital v. National Labor Relations Board, 328 F.3d 837 (6th Cir. 2003).

328 F.3d 837 (Mt. Clemens General Hospital v. National Labor Relations Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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