On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge:
Before: HENDERSON, BROWN and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Petitioner Jackson Hospital Corporation (Hospital) seeks review of an adverse decision of the National Labor Relations Board (NLRB or Board). An administrative law judge (ALJ) found the Hospital violated section 8(a)(3) and (1) of the National Labor Relations Act (Act) when it placed registered nurse Frances Lynn Combs on "investigatory suspension" because of her protected union activities. Jackson Hosp. Corp., Cases 9-CA- 42249 et al. (NLRB July 29, 2008) (ALJ Dec.). The Board affirmed the ALJ's finding. Jackson Hosp. Corp., 355 N.L.R.B. No. 129 (2010) (NLRB Dec.). We grant the Hospital's petition and set aside the Board's decision insofar as it found the Hospital violated the Act by suspending Combs because its finding is not supported by substantial evidence in the record.*fn1
On June 8, 1998, the Board certified the United Steelworkers of America (Union) as the collective-bargaining representative of various Hospital*fn2 employees including registered nurses and medical lab technicians. From the start, the Union and the Hospital have had a rocky relationship,*fn3 indeed, they have yet to produce a collective bargaining agreement.
In January 2003, the Hospital hired Combs as a nurse in its medical/surgical unit. Her direct supervisor was Unit Manager Kathy Thacker, who reported to Chief Nursing Officer Debbie Linkous. A few months after Combs was hired, she was tentatively selected to be coordinator of the Hospital's proposed "swing bed" unit, for which unit she performed some "preliminary work."*fn4 ALJ Dec. at 38 (NLRB Dec. at 27).
In early April 2006, Combs joined the Union's bargaining committee and attended two collective-bargaining sessions. When Combs learned the Hospital refused to bargain thereafter because of her participation--the Hospital considered her coordinator position part of management--she wrote a letter to Linkous declining the position as a permanent position. She then continued to participate in bargaining sessions.
On December 12, 2006, the Hospital distributed a document, which each nurse was required to sign, outlining new policies to govern administering medications to patients. Under the new policies, each nurse was to place a patient's medication in a plastic bag with the patient's label affixed, take it to the patient's room, transfer it to a medication cup, administer it to the patient and then dispose of the plastic bag in a shred container. Believing the new policy " 'would be difficult to implement,' " Combs met with Donald Rentfro, the Hospital's chief executive officer, and gave him a document setting out her concerns about the policy. ALJ Dec. at 38 (NLRB Dec. at 27) (quoting Transcript of ALJ Hearing, Jackson Hosp. Corp., Cases 9-CA-42249 et al. (Hearing Tr.), at 119 (Apr. 8, 2008) (Combs)). Rentfro referred the matter to Linkous later that day. The next day, Combs signed the new policy, believing it " 'was going to be revised' in order to make it 'easy to implement it.' " ALJ Dec. at 38-39 (NLRB Dec. at 27) (quoting Hearing Tr. at 120, 122) (Apr. 8, 2008) (Combs)). She acknowledged, however, that "when she signed the form there was no mention of revisions on it." Id. at 39 (NLRB Dec. at 27).
On January 10, 2007, Unit Manager Thacker observed Combs taking medication to a patient in an unlabeled cup rather than a labeled plastic bag, as the policy required. When Thacker pointed out she had not followed the new policy, Combs responded: " 'We don't need to be fools. We need to use common sense.' " Id. (NLRB Dec. at 27) (quoting Hearing Tr. at 62-63 (Nov. 27, 2007) (Combs)). Combs also told Thacker she intended to take the matter up with Linkous and five minutes later, accompanied by another nurse, Debra Adams, she went to Linkous's office. Linkous told Combs that before she could do anything, she needed to hear Thacker's version and "review the policy and procedure." Hearing Tr. at 1045 (Apr. 7, 2008) (Linkous). Linkous then promised to " 'get back with [Combs] as soon as [she] could.' " ALJ Dec. at 39 (NLRB Dec. at 27) (quoting Hearing Tr. at 1045 (Apr. 7, 2008) (Linkous)) (alterations added).
Linkous discussed Combs's infraction with Thacker about one week later and, according to Linkous's testimony, they decided to give Combs a "verbal warning." ALJ Dec. at 39 (NLRB Dec. at 27). Accordingly, on January 18, 2001, Linkous, Thacker and Human Resources Director Naomi Mitchell met in Linkous's office to deliver the warning. The ALJ found that Linkous, Thacker and Mitchell conferred before meeting with Combs and that Linkous told the others " 'if . . . Combs refused to meet with [them], that [they] would have to place her on an indefinite suspension.' " ALJ Dec. at 39 (NLRB Dec. at 27) (quoting Hearing Tr. 1129-30 (Apr. 7, 2008) (Linkous)); see also id. (quoting Hearing Tr. 1604-05 (Apr. 8, 2008) (Mitchell)). Linkous then invited Combs to her office, explaining that "she 'had made a decision regarding the January 10th incident and that she wanted to talk to [Combs] about it." Id. at 40 (NLRB Dec. at 28) (quoting Hearing Tr. at 69. (Nov. 27, 2009) (Combs)). Combs again brought Adams along with her. When the two arrived, however, Linkous told Adams she could not stay and Adams immediately left. The ALJ found that the testimony of each of the four remaining employees was consistent in the "broad outlines" of what then followed. Id.
First, Combs asked Linkous whether she could have a "union representative" present, specifically offering to telephone Union Organizing Coordinator Randall Pidcock to attend. Id. When Linkous rejected her request, Combs responded it was her " 'understanding, having been part of the union[,] that representation for anything to do with a disciplinary discussion [she] had a right to representation for that and that [she] did not understand why [Linkous] was telling [her] no.' " ALJ Dec. at 40-41 (NLRB Dec. at 28) (quoting Hearing Tr. at 73 (Nov. 27, 2007)) (Combs)) (first alteration in original). Linkous then asked Combs if she was " 'refusing to go ahead with the meeting' " and Combs " 'said yes.' " Id. at 41 (NLRB Dec. at 28) (quoting Hearing Tr. at 1589 (Apr. 8, 2008) (Mitchell)). Linkous then told Combs she was being placed on "investigatory suspension."*fn5 ALJ Dec. at 41 (NLRB Dec. at 28); see also Hearing Tr. at 74 (Nov. 27, 2007) (Combs) (Linkous "then said 'I'm sorry, Lynn, but I will have to suspend you indefinitely pending an investigation.' "). Combs asked if she would be paid "if it turned out that she had been correct in her belief regarding her right to representation." ALJ Dec. at 41 (NLRB Dec. at 28). Mitchell said "the normal practice" was to pay an employee if it was ultimately determined an employee had done nothing wrong. Hearing Tr. at 1589 (Apr. 8, 2008) (Mitchell). Combs testified that before she left the meeting, she told the three other participants: " 'I have no personal issues with you. You all have treated me fairly. I just believe this is a matter of employee rights.' " ALJ Dec. at 41 (NLRB Dec. at 28) (quoting Hearing Tr. at 74 (Nov. 27, 2007) (Combs)). Finally, Combs asked if Linkous wanted her to see that her patients were covered by another nurse and then clock out and Linkous said "[y]es." ALJ Dec. at 41 (NLRB Dec. at 28); Hearing Tr. at 74 (Nov. 27, 2007) (Combs).
The following day, Combs informed Pidcock of her suspension and Pidcock wrote a letter to Rentfro, ...