1 14-4028-ag NLRB v. Sprain Brook Manor Nursing Home, LLC

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CI TING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18 th day of November, two thousand and fifteen.
Present: PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges , CHRISTINA REISS, District Judge

. *

____________________________________________________ N ATIONAL L ABOR R ELATIONS B OARD , Petitioner , v. No. 14-4028-ag
S PRAIN B ROOK M ANOR N URSING H OME , LLC, Respondent ,

____________________________________________________ For Petitioner: U SHA D HEENAN , Supervisory Attorney, National Labor Relations Board, Washington, D.C. For Respondent: J EFFERY A. M EYER & D AVID A. T AUSTER Kaufman Dolowich & Voluck LLP, Woodbury, NY

* Chief Judge Christina Reiss, of the United States District Court for the District of Vermont, siting by designation.2 ____________________________________________________ Petition for enforcement of an order of the National Labor Relations Board. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for enforcement is GRANTED

. Petitioner the National Labor Relations Board (“the Board”) petitions for enforcement of its decision and order finding vi olations of the National Labor Relations Act (“the Act”) by Respondent Sprain Brook Manor Nursing Home, LLC (“Sprain”) against its employees. We assume the parties’ familiarity with the underlying facts, the pro cedural history of the case, and the issues before the court. For the most part, the parties do not question the Board’s application of the law; they disagree only about the relative weight of various pieces of ev idence that underlie the Board’s conclusions. This court will affirm the conclu sions of the Board if supported by substantial evidence. 29 U.S.C. § 160(e); see also Abbey’s Transp. Servs., Inc. v. NLRB , 837 F.2d 575, 579 (2d Cir. 1988). “Where competing inferences exist, we defer to the conclusions of the Board.” Abbey’s Transp. , 837 F.2d at 582; see also Universal Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951). Ultimately, the reviewi ng court must set aside the Boar d’s decision if, in viewing the record as a whole, it is “left w ith the impression that no rational trier of fact could reach the conclusion drawn by the Board.” NLRB v. G & T Terminal Packaging Co. , 246 F.3d 103, 114 (2d Cir. 2001). There is no basis for doing so here. The Board found that various interactions between Sprain ’s administrator, Michael Reingold, and Sprain employees, namely Cath erine Alonso and Kare n Bartko, constituted violations of Sections 8(a)(1) and 8(a)(3) of the Act. The Board also found that several policy changes implemented by Sprain violated Section 8(a)(5) of the Act. We consider each set of3 findings in turn. An employer violates Section 8(a)(1) when it “i nterfere[s] with, restrain[s], or coerce[s], employees in the exercise of th e rights guaranteed in [S]ection [7].” 29 U.S.C. § 158(a)(1). Section 7 of the Act guarantees em ployees the right to “form, join or assist labor organizations” and engage in other activities related to coll ective bargaining. 29 U.S.C. § 157. Where an employer acts against an employee who is e ngaged in protected Section 7 activity, the employer’s actions violate Section 8(a)(1) if they would have “a reasonable tendency to coerce or intimidate employees, regardless of whether they are actually coerced.” N.Y. Univ. Med. Ctr.
v. NLRB , 156 F.3d 405, 410 (2d Cir. 1998). An employer violates Sectio n 8(a)(3) of the Act by disc iplining or discharging an employee for engaging in Section 7 union activity. See 29 U.S.C. § 158(a)(3); NLRB v. Transp. Mgmt. Corp. , 462 U.S. 393, 397-98 (1983), abrogated on other grounds by Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries , 512 U.S. 267 (1994). Such actions also derivatively viol ate Section 8(a)(1) because an tiunion-motivated discipline or discharge necessarily di scourages union membership or activities. See Office & Prof’l Emps. Int’l Union v. NLRB , 981 F.2d 76, 81 n.4 (2d Cir. 1992). The test for a Section 8(a)(3) violation involves a two-step burden-shiftin g framework, as articulated in Wright Line , 251 NLRB 1083 (1980). See Transp. Mgmt. Corp. , 462 U.S. at 403 (approving Wright Line test); NLRB v. S.E. Nichols, Inc. , 862 F.2d 952, 957 (2d Cir. 1988) (applying Wright Line test). The Board’s General Counsel first has the burden to show that the employer (1) had knowledge that employees were engaged in protected union activ ity and (2) that the employer’s decision to discipline or discharge those employees was motiv ated, at least in subs tantial part, by hostility toward that union activity. See Abbey’s Transp. , 837 F.2d at 579. Once the General Counsel4 makes that showing, the burden shifts to the employer to demonstrate, by a preponderance of the evidence, that it would have taken the same action absent the protected union activity. See S.E. Nichols , 862 F.2d at 957. The Board concluded that Sprain violated Section 8(a)(1) of th e Act when Reingold threatened Alonso in response to her asking to leave the room during her discharge meeting in order to get union delegate Clarisse Nogueira. As a threshold matter, seeking to have a union representative present for an important meeting with one’s supervisor, as Alonso did here, is protected Section 7 activity. See NLRB v. J. Weingarten, Inc. , 420 U.S. 251, 260 (1975). While the exact nature of Reingold’s threats that Alons o would have “trouble” a nd would “get nothing” were unclear on this record, it is objectively r easonable for Alonso to have believed that the threatened consequences were serious and nega tive and thus sufficiently coercive to violate Section 8(a)(1). See NLRB v. Brookwood Furniture , 701 F.2d 452, 460 (5th Cir. 1983) (in the context of noticeable, ongoing antiunion animus, s upervisor violated Sec tion 8(a)(1) by saying to employee that he was “afraid” employee would “get into trouble” because of employee’s union support); Parkview Hospital, Inc. , 343 NLRB 76, 81 (2004) (employer threatening employee with “trouble” for union activity vi olated Section 8(a)(1)). Sprain Brook challenges this conclusion of the Board only by attacking Alonso’s credibility. We will not disturb the Admi nistrative Law Judge’s (“ALJ”) credibility determinations, however, unless they are “hopelessly incredible or the findings flatly contradict either the law of nature or undi sputed documentary testimony.” NLRB v. Thalbo Corp. , 171 F.3d 102, 112 (2d Cir. 1999) (quotation marks omitted); see also NLRB v. Dinion Coil Co. , 201 F.2d 484, 487 (2d Cir. 1952). Although the ALJ acknowledged that Alonso’s testimony was convoluted and contradictory at times, the ALJ u ltimately found her to be candid and reliable and5 credited most of her testimony. Alonso’s te stimony was not only corroborated by Nogueira’s testimony, it was not rebutted by Sprain because Reingold, who presumably could have countered Alonso’s recitation of Rei ngold’s threats, di d not testify. Substantial evidence also supports the Board’ s conclusion that Rei ngold’s discharge of Alonso violated Sections 8(a)(3) and 8(a)(1). Sprain knew of Alonso’s uni on activity because it had been paying Alonso monthly backpay for havi ng illegally fired her for her union affiliation in 2005. Sprain admits, moreover, that Reingold sat in with Alonso at initial union-forming negotiations within months prior to her discharge. Her union ac tivity was not stale, as Sprain contends. See Am. Thread Co. v. NLRB , 631 F.2d 316, 318, 322-23 (4th Cir. 1980) (discharge unlawful even though last union activity was eight months before discharge). Given Nogueira’s unrebutted testimony that Reingold told her and Alonso that em ployees did not deserve union representation, there was substantial evidence th at Sprain’s employment decision was motivated by hostility to the union. Moreove r, although Sprain argues thatAlonso’s discharge was based on poor job performance, it presented no evidence to show that Reingold relied upon, or even knew about, Alonso’s past di sciplinary write-ups, which were issued several ye ars prior to the events in question during Alonso’s first mont hs of employment. Alonso and Nogueira’s testimony constituted substantial evidence of the violation. With respect to Bartko, Sprain does not contes t that the Board’s General Counsel met his initial Wright Line burden. Sprain’s attempts at showi ng an independent reason for taking action against Bartko fall short. The door-slamming inci dent, which Sprain claims is the real reason Bartko was discharged, was reasonabl y interpreted by the Board as pretextual. There is evidence that the doors to the facility could not slam because of built-in bars, and Bartko was a 15-year employee with no disciplinary record. In addition, Sprain contends that Barkto’s response to6 Reingold suspending her—telling him she would not hold the door for him and that he should go home—and the fact that she showed up for work th e next day after being told to go home, were insubordinate. The cases that Sprain cites as precedent, however, involve significantly more egregious behavior. E.g. , NLRB v. Starbucks Corp. , 679 F.3d 70, 78-80 (2d Cir. 2012) (employee’s use of profanities in front of customers may have resulted in loss of the Act’s protection). The record supports the Board’s finding that Sp rain’s proffered reasons for discharging Bartko were pretextual. See Vincent Indus. Plastic, Inc. v. NLRB , 209 F.3d 727, 736 (D.C. Cir. 2000). The Board’s conclusions that Sprain committed four violations of Section 8(a)(5) of the Act by unilaterally rescinding or altering employ ee benefits also are s upported by substantial evidence. Sections 8(a)(5) and 8(d) require employers to “bargain collectively with the representatives of [its] employees ” with respect to “wages, hours, and other terms and conditions of employment.” 29 U.S.C. §§ 158(a)(5), 158(d) . An employer violat es that section by announcing and altering such conditions of em ployment without giving the union prior notice and the opportunity to bargain over the change. Litton Fin. Printing Div. v. NLRB , 501 U.S. 190, 198 (1991); NLRB v. Katz , 369 U.S. 736, 743 (1962). Sprain does not dispute that the four rescin ded benefits—free hot l unches, on-site checkcashing during work hours, free on-site physicals and tuberculosis tes ting, and medical-expense payouts—are mandatory subjects of bargaining. Sprain also doe s not contest that, for each benefit, it issued to its employees a written notice warning them that the benefit would no longer be available. Notwithstanding these notices to em ployees, Sprain never sent any of the notices to the union. Sprain’s behavior thus denied the union any opportu nity to bargain over these changes, in violation of Section 8(a)(5). See NLRB v. WPIX, Inc. , 906 F.2d 898, 901 (2d Cir.7 1990) (noting that ignoring the union and taking unilateral action “detracts from the legitimacy of the collective bargaining process by impairing the union's ability to function effectively, and by giving the impression to members that a union is powerless.” (quotation omitted)). With regard to check-cashing in particular , Sprain argues that it had no contractual relationship with the third-party check-cashing company and no control over that company’s decision to cease the service. This contention is irrelevant. Sprain do es not dispute that it previously allowed its employees to cash their checks during work hours or that this was a benefit mandatorily subject to ba rgaining. By focusing exclusively on the fact that it did not unilaterally cease this service, Sprain abandoned the argument that it had no obligation to notify the union of a change to the service. The Board’s conclusion that Sprain’s failure to notify the union of this change violated Section 8(a)(5) must stand. We have considered all of Sprain’s remaining arguments and find them to be without merit. The petition for enforcement is GRANTED

.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk