Nursing v. National Labor Relations Board

164 F.3d 867
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 21, 1999
Docket97-2719, 98-1120
StatusPublished
Cited by4 cases

This text of 164 F.3d 867 (Nursing v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nursing v. National Labor Relations Board, 164 F.3d 867 (4th Cir. 1999).

Opinions

Petition for review granted in part and denied in part, and cross application for enforcement granted in part and denied in part by published opinion. Judge WILLIAMS wrote the opinion, in which Chief Judge BULLOCK joined. Judge MURNAGHAN wrote a separate opinion concurring in part and dissenting in part.

OPINION

WILLIAMS, Circuit Judge:

Americare Pine Lodge Nursing and Rehabilitation Center (Pine Lodge) petitions for review, and the National Labor Relations Board (the Board) cross-petitions for enforcement, of the Board’s order determining that Pine Lodge violated § 8(a)(1) and (a)(5) of the National Labor Relations Act (NLRA or the Act) by engaging in direct dealing with its employees, unlawfully withdrawing recognition from the employees’ union as the exclusive bargaining representative, and unilaterally imposing wage increases. See 29 U.S.C.A. § 158(a)(1) & (a)(5) (West 1998). For the reasons stated herein, we grant Pine Lodge’s petition for review in part and deny it in part; and we grant the Board’s cross-petition for enforcement in part and deny it in part.

I.

This case arises from events surrounding Pine Lodge’s July 1995 attempt to secure an extended labor agreement approximately five months before the expiration of the agreement then in effect.1 The employees were represented by The Healthcare and Social Union, SEIU, AFL-CIO (the Union) and successfully had negotiated a labor agreement covering the period from December 9, 1993, to December 7, 1995 (the 1993 agreement). That agreement did not have a reo-pener clause, but did allow for written amendments with the consent of both parties.

Because Pine Lodge was planning to open a new subacute care unit in December 1995, it wished to avoid labor negotiations during that period. It therefore forwarded a letter to the Union on July 5, 1995, offering to extend the 1993 agreement for one year. In return for the extension, Pine Lodge offered [872]*872a $.25 or $.50 per hour wage increase, dependent upon job classification, to the represented employees. The offer was set to expire by its own terms on July 17, 1995. Pine Lodge faxed the July 5, 1995, offer letter to the Union. Soon afterwards, that same offer letter was posted near the Pine Lodge employee time clock so that the employees could read it.

The Union representative charged with responsibility for Pine Lodge’s bargaining unit, Jennifer Jordan, was away on vacation when the offer was received at the Union offices. Upon her return on July 11, she received the offer letter and several messages from Pine Lodge employees concerning the outstanding offer. She visited with employees about the offer on July 14, three days before it was set to expire. Based on her discussions, Ms. Jordan decided that the employees did not favor the offer and instead preferred to negotiate other matters such as grievance procedures and fringe benefits at a date closer to the expiration of the 1993 agreement. A few employees also asked Jordan about anniversary wage increases, a provision that was included in the 1993 agreement. The Union chose not to make a counter-proposal and simply allowed the offer to expire.

While the offer was outstanding, however, two conversations concerning the proposal occurred between Pine Lodge supervisors and employees. The first occurred between Dietary Manager Dreama Thomas and four employees. Thomas held a meeting at which Brenda Elliott, one of her employees, raised a question concerning the status of anniversary wage increases under the new proposal. Because Thomas was not familiar with the details of the proposal, she requested Office Manager Jackie Clark to join the meeting and respond to the question. Clark also was unable to explain how the anniversary wage increases were to be treated under the new proposal. After a short discussion, the meeting ended without any resolution.

Dreama Thomas also was involved in a second conversation regarding the proposal, this time with an employee named Dorothy Smith. During a smoking break in Smith’s car, Thomas asked Smith her opinion of Pine Lodge’s proposal. Smith responded that it sounded good, but that it was made simply to get rid of the Union. Thomas made no response and their discussion of the proposal ended.

Despite the expiration of the July 5 proposal, Pine Lodge submitted another proposal to the Union on July 28, 1995. This proposal mirrored the first,.but specifically noted that anniversary wage increases would be maintained in addition to the newly offered hourly raises. The July 28 offer letter also stated:

If you really care about the hard working employees at Amerieare-Pine Lodge, then you will give them an opportunity to have a secret ballot vote on whether or not to accept this large and very generous wage increase. I honestly believe this proposal is much more than we will be offering if we have to bargain in December 1995.

(J.A. at 304.) Pine Lodge also copied the July 28 offer letter to its employees.

Along with the July 28 letter, Sherry Johnson, the Administrator at Pine Lodge, authored and distributed a memorandum to the Pine Lodge employees. The memorandum read as follows:

I have had many employees come to me asking if the wage increase that was offered earlier could be extended or reof-fered since the union did not respond to the previous offer.
I am pleased to announce that the company has agreed to reoffer this proposal. Also, please note for the employees who were concerned about not getting an anniversary increase, that this is being offered also.
I feel that this is an extremely fail’ offer for each of you. I urge you to giving [sic] this proposal serious thought.
I will be holding meetings next week to discuss this more indepth [sic] for those who have questions.
Please note in the attached correspondence that the union must respond to Steve Ronilo, our human resource vice president by 6:00 p.m. on Friday, August 4, 1995, if you -want this wage increase.
[873]*873Thank you for your time and attention to this proposal.

(J.A. at 306.)

On July 31, after receiving the second offer letter, Jennifer Jordan again met with Pine Lodge employees and distributed a flyer notifying them that the Union intended to hold a membership meeting on August 4, at which it would take a vote on the second offer. Between July 31 and August 4, the Union and Pine Lodge actively campaigned for their positions. Both sides distributed flyers encouraging the employees to vote for or against the proposal.2 Sherry Johnson and another supervisor, Nancy Cooper, also approached a few employees individually and discussed the offer with them personally, once the Union announced the decision to hold a vote. Finally,'during that same period, members of Pine Lodge management held a meeting for nursing assistants and encouraged them to vote in favor of the proposal.

At the August 4 Union meeting, the employees soundly rejected the offer, but only 28 of the 73 bargaining unit employees voted. On August 7, Sherry Johnson issued a memorandum announcing that the wage increase would not be implemented.

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164 F.3d 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nursing-v-national-labor-relations-board-ca4-1999.