Opportunity Homes, Inc., Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner

101 F.3d 1515

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 5, 1997
• Docket: 95-5605, 95-5699
• Status: Published

Opinions

MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. KRUPANSKY, J. (pp. 1521-43), delivered a separate dissenting opinion.

MOORE, Circuit Judge.

Opportunity Homes, Inc. (“OH”) petitions for review of an order of the National Labor Relations Board (the “NLRB” or “Board”) directing OH to cease and desist from certain unfair labor practices and to take affirmative steps to remedy their effects. The Board in turn seeks enforcement of its order. Because substantial evidence supports the Board’s factual findings, we deny the petition for review and grant the cross-application for enforcement.

I. Background

Although some of the facts of this ease are in dispute, OH’s petition does not challenge the following findings. OH provides full-time residential care for twenty-two mentally and physically disabled individuals in Lisbon, Ohio. At the OH facility on Friday, January 24,1992, an official of the Service Employees International Union and forty OH employees and family members approached Mary Jane Jones, the head administrator. The union official gave Jones a petition signed by forty-one of the forty-four OH employees who were eligible to be part of the union’s bargaining unit. The petition announced that the employees had organized a local unit of the union, and the union official demanded that OH recognize it. Jones orally responded that she would recognize the union as the bargaining representative of the employees.

The following Monday, Jones posted a memorandum to all employees at the OH facility. The memorandum professed support for the union but disappointment in the employees for avoiding her after the Friday encounter and for not coming to her with their complaints: “I saw the Great Wall of China rebuilt at Opportunity Homes late Friday afternoon.” It also cautioned the employees to choose their union representative carefully, characterizing the Friday encounter as an attempt to intimidate her with numbers that “did tremendous harm to our program.” The memorandum then continued:

Because of the dependable crew that we had working for us we were able to eliminate the position of personnel director and put the money towards things such as wages and bonuses. Because we will now be forced to follow the policy manual to the letter, and will also need an administrative union representative, an ad will soon be placed for a full time personnel director. Per your request, anything I have to say to the employees will come via an official memo or other similar form. Legal counsel has advised me to close my open door policy. I will address employee problems, but only through a third person, the union representative. Since the union must approve all benefit plans, the ones planned for this year will all be tabled, including the health insurance plan you were shown a couple of weeks ago. I was able to negotiate a plan that would eliminate all pre-existing, conditions, but the time limit is running out.

... I am not scared of your union or threatened by it in any way. If I was, I definitely would not have so graciously recognized your position. I will do what I have to do for these residents. The words strike and walkout do not intimidate me. I, unlike some of you, have made a commitment to the handicapped citizens who employee [sic] me.

Despite this recognition of the union, Jones and OH’s board of directors refused repeated requests to bargain with it, until OH finally acknowledged recognition in October 1992.

After the memorandum was posted, the relationship between the employees and management suffered a breakdown; each side blamed the other for it. Within four days of the posting of the memorandum, director of nursing Judy Manning responded to nurse Lorena Howell’s reluctance to sign a disciplinary report by shouting that Howell would have signed it without objection prior to the union’s arrival, and program director Richard Fithian told activity aide Linda Joy that he was issuing her a written warning for misplacing some documents — rather than simply retrieving the documents himself— because unionization required him to follow strict procedure. In the following months, OH discontinued policies of distributing paychecks early and of providing pay advances, changed and reduced certain employees’ work hours, adopted a more strict policy regarding signing informational memoranda, and prohibited employees from wearing pins at a time when employees had begun to wear pro-union paraphernalia. Active union supporter John Tharp- saw his job eliminated a few weeks after he challenged a disciplinary report from Fithian; Tharp was forced to work reduced and inconvenient hours at another position, and Fithian did not inform him or any other unit employee when soon thereafter Fithian created and filled a new position that incorporated many of Tharp’s former duties. Supervisor Kathryn Fristik repeatedly told employees that they would be fired if they took complaints to anyone but OH management.

After examining hundreds of exhibits and hearing the testimony of over twenty witnesses, an administrative law judge (an “ALJ”) found that this and other conduct discussed below constituted unfair labor practices under 29 U.S.C. § 158. He accordingly recommended ordering OH to ■ cease and desist from such practices and to take various affirmative remedial steps. The NLRB adopted the ALJ’s findings and recommendations and issued the order, with minor changes. The case is now before us on OH’s petition for review and the Board’s cross-application for enforcement.

II. Applicable Law

An employer commits an unfair labor practice if it makes an employment decision in order to discourage union membership or to interfere with employees’ right to organize. 29 U.S.C. § 158(a)(1), (3). The general counsel of the NLRB has the burden of proving by a preponderance of the evidence that protected union activity was a substantial or motivating factor in the adverse employment decision. NLRB v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 2474, 76 L.Ed.2d 667 (1983); NLRB v. Cook Family Foods, Ltd., 47 F.3d 809, 816 (6th Cir.1995). If he or she carries this burden, the employer may avoid liability by proving by a preponderance of the evidence that it would have taken the adverse action even in the absence of the illicit motivation. Transportation Management, 462 U.S. at 401, 103 S.Ct. at 2474; Cook Family Foods, 47 F.3d at 816.

The Board’s legal conclusions are reviewed de novo, but its findings of fact and application of law to fact- are subject to the “substantial evidence” standard of review. NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th Cir.1993). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Furthermore, “[djeference to the Board’s factual findings is particularly appropriate where the ‘record is fraught with conflicting testimony and essential credibility determinations have been made.’ ” Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir.) (quoting NLRB v. Nueva Eng’g, Inc., 761 F.2d 961, 965 (4th Cir.1985)), cert. denied, 484 U.S. 896, 108 S.Ct. 230, 98 L.Ed.2d 188 (1987).

III. Suspension and Termination of Nursing Staff

The most complicated factual dispute here involves the suspension and subsequent termination of Kathy Byers, Lorena Howell, Gayle Milhoan, and Carol Redmond, all licensed practical nurses who worked at OH. The ALJ found and the Board agreed that the suspensions and terminations were the result, of the nurses’ active support for the union. OH does not dispute the findings that the nurses were known union activists and that they had exemplary records prior to the unionization effort, but it does challenge other evidentiary findings on which the NLRB’s conclusion was based and offers an alternative explanation for the adverse employment actions.

The ALJ found that the unionization attempt prompted management officials, especially Judy Manning, the four nurses’ supervisor and the director of nursing, to adopt a hands-off, stonewalling policy towards the nursing staff. Communication ceased and the quality of nursing care accordingly declined. As a result, an annual Ohio Department of Health (“ODH”) inspection in April 1992 cited OH for a greater number of regulatory violations than ever before, putting the facility’s state certification and funding in jeopardy. OH management seized this opportunity to get rid of the pro-union nursing staff. It blamed the nurses for almost half the violations, suspended the nurses, and fired them after a biased internal investigation.

According to OH, however, it was the nurses, not the management, who used the ODH survey for their own ends. OH asserts that the'nurses purposely arranged the violations and directed ODH inspectors to the evidence thereof. Their intent was to force the facility to shut down, because their union liaison allegedly had told them that the state would then appoint a receiver and the current management would be replaced. To provide support for this theory, OH attacks three specific ALJ findings: (1) general anti-union animus on the part of OH management, (2) Manning’s hands-off policy, and (3) the nurses’ lack of responsibility for the violations.

Substantial evidence supports the ALJ’s finding that OH management generally had an anti-union attitude. The events discussed in part I indicate that management was hostile to the union; for instance, the memorandum Jones issued promised in no uncertain terms to enforce work rules more strictly and implied ominously , that health care and wages would suffer as a result of unionization. Furthermore, between the posting of the memorandum in January and the arrival of the ODH inspectors in April, policies regarding overtime pay, paycheck distribution, replacement workers for sick days, doctors’ excuses for missing work, and scheduling vacation were all changed, to the nurses’ detriment. Management also removed a pay telephone used by employees, restricted access to a copying machine that the nurses routinely used, and changed the locks on the nurses station without giving the staff new keys. OH argues that ongoing renovations and financial difficulties made these changes necessary, but there was considerable evidence to the contrary, and we therefore defer to the ALJ’s reasonable resolution of conflicting accounts. Finally, OH does not dispute the finding that it recognized the union in January but refused to bargain with it until October.

Likewise, we must uphold the ALJ’s conclusion that Manning had an uncommunicative, “hands-off” attitude towards the nursing staff. OH’s argument on this point simply reads convenient conclusions into the testimony of OH management and ignores the nurses’ versions of the same events. For instance, one of the keys to the ALJ’s conclusion was that no coordinated preparation was done for the April 1992 ODH survey. OH discounts this finding by asserting that no preparation was ever done for any ODH survey because OH never knew when an ODH survey might occur. The nurses, however, testified that preparation for ODH surveys had been routine in past years and that the lack of such preparation for the 1992 inspection was therefore a marked departure from established practice. Even management officials admitted, contrary to the assertion in OH’s brief, that the date of the ODH survey could be predicted with some accuracy. Moreover, Manning herself testified that she took a more passive approach to her duties in response to advice from legal counsel, and that once she decided that the ODH violations were the nurses’ fault, she never asked them for their side of the story.

Finally, the parties’ disagreement regarding who was responsible for the ODH violations presents another conflict of evidence that requires us to defer to the ALJ. Jones’s analysis of the ODH survey results found that musing deficiencies were responsible for forty-five percent of them, although her breakdown includes (Erector of nursing Manning within the culpable group. Nurse Byers’s analysis indicates that the nursing department was only wholly responsible for five of the approximately sixty citations and partly responsible for seven others. •

Neither of these analyses is more inherently credible than the other. Byers’s was admittedly prepared for litigation, but the process by which Jones arrived at her decision to blame the nurses was not particularly objective either. The evidence clearly showed that even before beginning any internal investigation, management had decided that the nurses had caused the regulatory violations by intentionally sabotaging the facility. The investigation that did eventually take place was highly suspect; Jones hired a former OH management official, Marilyn Robb, to investigate the nursing deficiencies at OH. The nurses were suspended after Robb had investigated only four of the twenty-two residents’ records, and Robb’s final report, which was allegedly the basis for the decision to fire the nurses, contained conclu-sory statements regarding the nurses’ illicit motivations and státed on its cover page, “This report ... serves as the back up documentation needed to support [the nurses’] suspension from this facility and subsequent termination.” The ALJ reasonably viewed this evidence as unreliable.¹

The evidence of the nurses’ intent to sabotage the facility is also weak. OH points to disputes between the nurses and the management regarding the administering of fluids and medicine to residents and concludes that the nurses’ accounts of these disagreements can only be explained by a deep-seated malice towards the facility and its residents. The evidence, however, can reasonably be read as showing a genuine concern on the nurses’ part that medical treatment not be undertaken without proper doctors’ orders. Furthermore, OH’s theory relies on the supposition that the union was encouraging ODH violations in order to force the facility to close, in the belief that the State of Ohio would then appoint a receiver to replace the OH management, but there is no evidence that anyone discussed the possibility of receivership before the ODH survey. Nurse Byers and a union official testified that they began to discuss that possibility only after the survey, when management raised the specter of a closing.

In short, OH’s challenge to the ALJ’s conclusion regarding the suspension and firing of the nurses is based on its own one-sided interpretation of the evidence. While this interpretation is not necessarily frivolous, the evidence is also clearly adequate to support the ALJ’s alternative interpretation. Because the ALJ had the opportunity to evaluate the witnesses’ testimony in person, we defer to his decision.

IV. Termination of Blaine Ritchie

A second disputed issue is the firing of aide Blaine Ritchie, another well-known union supporter and one who appeared on local television—ten days before his termination—accusing Jones of having reneged on her recognition of the union. OH claims that program director Richard Fithian fired Rit-chie for leaving a physically disabled resident named Donald alone in the shower. Donald fell and had to be taken to the hospital for treatment of a head abrasion. The ALJ found and the Board agreed that Ritchie was fired for his pro-union activity.

The entire controversy surrounding what happened to Donald centers on what Ritchie said to nurse Aaron Rowe when the latter arrived at the scene of the fall. According to Ritchie, he had undressed Donald, was holding his hand to steady him, and was turning toward the shower controls when he felt Donald fall. Ritchie called for help, and Rowe arrived and asked how the fall had occurred. Ritchie said, “I don’t know, I don’t know whether he had a seizure or slipped on the wet floor.” Rowe, however, testified that Ritchie also said, “I found him like this:” Rowe therefore reported that Ritchie had left Donald unattended. Fithian allegedly believed Rowe’s account of what Ritchie said and fired Ritchie for intentional neglect of a resident.

Substantial evidence supported the ALJ’s decision to view as suspect Fithian’s stated reasons for believing Rowe. Fithian claimed that Ritchie’s story had changed after the night of the incident, but Ritchie consistently maintained that he had been with Donald at the time of the fall and simply did not know exactly what had happened. Fithian also stated that he believed Rowe because Rowe was “in a more professional position” than Ritchie, but the ALJ explicitly found Rowe’s testimony evasive and his memory unreliable. Fithian testified that his past dealings with Ritchie and the latter’s disciplinary history were a factor in the decision to credit Rowe’s story, but the ALJ reasonably concluded that Ritchie’s two previous disciplinary incidents, which had to do with leaving a hair dryer where a resident had access to it and jumping the curb while driving an OH vehicle, had nothing to do with credibility, and he found Ritchie to be “a highly credible witness.” Finally, Fithian interpreted a telephone call that Ritchie made to Rowe after the termination decision as an attempt by Ritchie to get Rowe to “change his story,” even though by both individuals’ accounts it was a friendly chat about their views of what had happened. Given Fithian’s previous arguably anti-union conduct, as evidenced by his treatment of Tharp and Joy, the ALJ reasonably concluded that the articulated reasons for firing Ritchie were a pretext.

V. Termination of Donna Yeager

In June 1992, supervisor Kathyrn Fristik fired aide Donna Yeager for insubordination. The ALJ found that the termination would not have occurred absent Yeager’s known pro-union stance, and the Board explicitly affirmed this finding. OH now argues that the ALJ and Board ignored compelling evidence.

The events leading up to Yeager’s termination began on May 29, 1992, when Fithian gave Yeager a five-day suspension for behaving inappropriately in front of an ODH team that had returned to follow up on its April survey. According to Yeager, at the time Fithian told her of the suspension-she said, “Union?” and he replied, ‘Yes.” The ALJ credited Yeager’s testimony on this point and reasonably concluded that the suspension was prompted by anti-union animus. Three days after returning from her suspension, Yeager was fired for being insubordinate to Fristik in front of a county inspector; the inspector testified at the hearing and corroborated Fristik’s account of the incident.

Given the inspector’s presumably impartial testimony and the fact that Yeager’s personnel file had a number of reports of prior incidents in which she was cited for being disrespectful—several of which predate the unionization effort—her .insubordination on the day she was fired is well established. Nevertheless, the ALJ’s conclusion survives appellate review because of the lack of evidence that Yeager would have been terminated if not for the May 29 suspension. On the stand, Fristik could not say that she would have fired Yeager if the suspension had not occurred, and the evidence that the suspension was motivated by an anti-union animus is considerable. Both the ALJ and the Board explicitly relied on this testimony in finding that Yeager’s termination constituted an unfair labor practice. Substantial evidence supports their conclusion.

VI. Reduction of Brad Martin’s Pay

Each of the adverse employment actions discussed above was found to be a violation of subsection (a)(3) of 29 U.S.C. § 158. The ALJ characterized the reduction of Brad Martin’s pay in July 1992, however, as a violation of subsection (a)(5), which makes it an unfair labor practice to refuse to bargain collectively. The ALJ therefore did not conclude that anti-union animus played a role in the decision to reduce Martin’s pay; he instead viewed the reduction as a unilateral change in a condition of employment over which OH, having recognized the union, had an obligation to bargain. OH did not address this issue before the NLRB and has not briefed it here. “If a company fails to address or take issue with the Board’s findings and conclusions with regal’d to violations of the [National Labor Relations] Act, then the company has effectively abandoned the right to object to those determinations.” Hyatt Corp. v. NLRB, 939 F.2d 361, 368 (6th Cir.1991); see also 29 U.S.C. § 160(e) (precluding review of argument not raised before NLRB except in extraordinary circumstances). We therefore decline to review that portion of the Board’s order having to do with the reduction in Martin’s pay.

For the foregoing reasons, we DENY OH’s petition for review and GRANT the NLRB’s cross-application for enforcement of the order.

1 . OH claims that the NLRB should have reopened the record to include the results of a 1993 ODH survey, which produced fewer citations than the 1992 survey. The Board need not reopen a record to admit new evidence unless the new evidence would require a different result. NLRB v. Cutter Dodge, Inc., 825 F.2d 1375, 1381 (9th Cir.1987); NLRB v. Johnson's Indus. Caterers, Inc., 478 F.2d 1208, 1209 (6th Cir.1973). That standard is not met here. OH argues that the improved survey results in 1993 indicate that the fired nurses were responsible for the 1992 citations, but the change could just as easily have been due to OH management’s abandonment of its uncommunicative policy or to any number of other factors.