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Edgewood Nursing Center Inc. v. National Labor Relations Board

decided: July 24, 1978.

EDGEWOOD NURSING CENTER, INC., PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT. TEAMSTERS, LOCAL 800, INTERVENOR.



Before Hunter and Weis, Circuit Judges, and Cohen,*fn* District Judge.

Author: Hunter

Edgewood Nursing Center, Inc., has petitioned for review of an order of the National Labor Relations Board. The Board has filed a cross-application for enforcement of the order. The Board found that Edgewood committed unfair labor practices by threatening to reduce the hours of employees to avoid their unionization and by discharging a licensed practical nurse because of her activities on behalf of the union. Edgewood has been ordered to cease and desist from these violations and to offer reinstatement with full back pay to the nurse. 230 N.L.R.B. No. 157 (1977). The petition questions whether there is substantial evidence in the record to support the Board's findings. While we find that the record supports the conclusion that the company threatened to reduce working hours, we do not find sufficient evidence that the discharge was motivated by anti-union animus. We therefore grant enforcement in part and deny enforcement in part.

I

Edgewood Nursing Center, Inc., operates a proprietary nursing home providing primarily geriatric care in Youngstown, Pennsylvania. The unfair labor practice charges involved in this appeal arose from the ultimately successful efforts of Teamsters Steel Haulers Local Union No. 800 to organize the Center's service and maintenance employees, including Licensed Practical Nurses (LPN's).

The first charge was that a supervising nurse at Edgewood made threats against two LPN's who were active in union activities. The Union began its organizational campaign in September, 1975. Dona Orlo, a staff LPN, initiated the drive and was the union's chief organizer. On October 20, Edgewood was formally notified that Orlo was the chief in-plant organizer. The LPN distributed and solicited union authorization cards and signed campaign literature. During October, Orlo was assisted by another staff LPN, Sylvia Mekic. On October 21, 1975, the Union filed a petition with the Board for an election at Edgewood. The proposed bargaining unit would consist of service and maintenance employees, including LPN's but excluding Registered Nurses (RN's).

In late September 1975, Edgewood received a deficiency letter from the Pennsylvania Department of Public Welfare. In response to one criticism contained in the letter, the Center's Board of Directors voted to upgrade patient care by hiring additional RN's. A notice to this effect was posted on or about September 20 until October 26, 1975.

Sometime in October, Edgewood's Director of Nursing, Rita Immel, RN, had a conversation with Orlo. Immel explained that the Center had been designated a "skilled" nursing home and that "in the future this would require the hiring of more registered nurses, and (the LPN's) would be getting the leftovers as far as hours were concerned." A similar statement was made to Mekic. She was told that RN's would be running all nursing shifts rather than LPN's. Immel testified before the administrative law judge that she had told the two LPN's that "if they were interested in looking for other jobs (because of the staff change), they were free to do so, that as vacancies arose (Edgewood) would he hiring RN's." Edgewood's Administrator, J. Robert McKissick, testified that the purpose of Immel's conversation was to allay fears of LPN's that they would be replaced by RN's. The administrative law judge found that in fact the facility had always been classified as a skilled home, and that the Department of Public Welfare required the hiring of more licensed personnel, either LPN's or RN's, rather than only RN's. There was no testimony indicating that Immel spoke to other LPN's about the hiring of RN's.

The Board affirmed the administrative law judge's finding that the Center, through Immel, had violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by threatening to reduce the working hours of LPN's and eventually to eliminate that job classification to avoid unionization of its employees. The Board particularly relied on the facts that the home had always been designated a skilled facility; that the conversations, which occurred shortly after the beginning of the organization effort, "were hardly reassuring to the Union's most active proponents;" and that no comments were made to other LPN's.

At the outset we note that the Board's factual findings bind this Court "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 493, 71 S. Ct. 456, 95 L. Ed. 456 (1951). Where there are credibility determinations, they rest with the administrative law judge as long as he considers all relevant factors and sufficiently explains his resolutions. N.L.R.B. v. W. C. McQuaide, Inc., 552 F.2d 519, 526 n.14 (3d Cir. 1977); Altemose Construction Co. v. N.L.R.B., 514 F.2d 8, 16 (3d Cir. 1975).

An employer violates section 8(a)(1) of the Act when it threatens that economic reprisals may be a consequence of unionization. "(T)he possibility that a statement contains an implied threat must be judged from the employee's point of view." Mon River Towing, Inc. v. N.L.R.B., 421 F.2d 1, 9 (3d Cir. 1969) (footnote omitted). See N.L.R.B. v. Colonial Knitting Corp., 464 F.2d 949, 951 (3d Cir. 1972); Carlisle Paper Box Co. v. N.L.R.B., 398 F.2d 1, 4-5 (3d Cir. 1968). We hold that there is substantial evidence in the record to support the Board's finding of a violation of section 8(a)(1). The Union was organizing a unit which would include LPN's but exclude RN's. Immel told only two LPN's, both of whom were actively organizing, that RN's would be assuming a greater part of the work of the nurses and would be taking preferred hours. Further, the two were told that they were free to leave, and would be replaced by RN's. From these circumstances, the Board could reasonably conclude that the two nurses perceived this message as a threat of economic retaliation for union activity leveled against them and against the LPN's generally. Accordingly, we will not disturb the Board's finding of an unfair labor practice for threatening economic reprisal.

II

The second unfair labor practice with which Edgewood was charged was terminating the employment of LPN Orlo. The General Counsel argued that the discharge was motivated by anti-union animus. Edgewood claimed that Orlo was discharged because she made her second error in dispensing medication, which resulted in an elderly patient's receiving double the prescribed dose of a drug.

Prior to June 1973, the Center's policy regarding medication errors was as follows. The employee involved was required to complete an incident report. After an investigation into the facts and an evaluation of the seriousness of the situation, the incident was discussed with the employee. The employee was reminded of the importance of such events and the possible consequences of such an error.

In March 1973 Orlo made a medication error. The patient was not harmed by the mistake. Orlo filed a report on the incident. The Director of Nursing, Immel, made a notation in Orlo's employment file which stated, "Mrs. Orlo spoken to re medication error. Very much aware of danger of medication errors." Orlo was not ...


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