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North Memorial Health Care v. National Labor Relations Board

United States Court of Appeals, Eighth Circuit

June 21, 2017

North Memorial Health Care Petitioner
v.
National Labor Relations Board Respondent National Labor Relations Board Petitioner
v.
North Memorial Health Care Respondent National Labor Relations Board

          Submitted: April 5, 2017

          Before BENTON, BEAM, and MURPHY, Circuit Judges.

          MURPHY, Circuit Judge.

         North Memorial Health Care (North Memorial or the hospital) owns and operates a health care facility in Robbinsdale, Minnesota (the facility). On June 24, 2014 the Service Employees International Union (SEIU) and the Minnesota Nurses Association (MNA) held an informational picket outside of the facility. The unions later filed multiple unfair labor practice charges against the hospital related to its conduct during the summer of 2014. An administrative law judge (ALJ) determined that the hospital had committed multiple violations of the National Labor Relations Act (NLRA or the Act). The National Labor Relations Board (the Board) unanimously affirmed the ALJ's rulings, findings, and conclusions. The hospital has petitioned for review, and the Board has filed a cross application for enforcement of its order. We grant the cross application for enforcement in part, and we grant the petition for review in part.

         I.

         North Memorial owns a health care facility in Robbinsdale, Minnesota. SEIU represents four bargaining units there which have over 900 employees, and MNA represents approximately 980 staff registered nurses at the facility. A joint informational picketing event by the unions was held outside the facility on June 24, 2014. Collective bargaining agreements were in effect for all SEIU and MNA bargaining units at all times relevant here.

         Prior to the summer of 2014, SEIU and MNA nonemployee union representatives regularly visited the facility's public cafeteria in order to talk with off duty employees. MNA representatives Joseph McMahon and Karlton Scott visited the facility one to three times a week and used the cafeteria on most of those days. SEIU organizer Frederick Anthony visited the facility at least every other day and usually spent time in the cafeteria during his visits. The union representatives generally used the cafeteria as a place to engage in informal conversations with employees. Hospital officials were aware that the union representatives used the cafeteria.

         There is no evidence in the record suggesting that the hospital had a generally applicable policy or practice which prohibited solicitation or gathering in the cafeteria. Article 1(h) of the collective bargaining agreement (CBA) between North Memorial and SEIU states that SEIU "shall have access . . . to such other nonpatient nonpublic areas to be designated by the Hospital." The hospital has designated two nonpublic areas for SEIU to meet with employees-a few tables in the lower level of the facility below the atrium and a space off of a hallway near an underground tunnel. The CBA between North Memorial and MNA does not discuss where MNA may interact with employees, but the hospital has designated a room on its lower level as an MNA office. Neither of the bargaining agreements mention any union right to access public spaces within the facility.

         On four occasions prior to the summer of 2014, the hospital had interfered with SEIU's attempt to use the cafeteria to hold a meeting or other activity. Twice the union was holding a prearranged meeting in the cafeteria, and once the union was attempting to hold a contract vote there. Before the latter, a nonemployee union representative had publicized that he would be in the cafeteria to discuss his candidacy for SEIU president. After the first two cafeteria meetings, the hospital told SEIU that it could not hold meetings, activities, or events in the cafeteria, but it could use that area to interact informally with off duty employees. In contrast, the hospital did not interfere with MNA's use of the cafeteria until June 2014.

         In early June 2014 both unions notified the hospital that they were going to engage in a joint informational picket on public property adjacent to the facility on June 24. The unions informed the hospital that the purpose of the picket was to promote safe staffing levels. The hospital initially anticipated the picket would likely attract a large crowd, but it did not expect it to affect its ability to care for patients.

         On June 23, the day before the picketing, SEIU representative Frederick Anthony and MNA representative Karlton Scott planned to meet in the cafeteria and then place picket information on bulletin boards throughout the facility. Anthony arrived before Scott, purchased lunch in the cafeteria, and began eating. He had flyers about the picket in a closed folder on his table. When employees approached him to ask questions about the picketing, he gave them a flyer. Anthony did not circulate through the cafeteria or initiate conversations with anyone. When Scott arrived, he sat at Anthony's table and began working on a laptop computer while Anthony finished eating.

         While Anthony and Scott were sitting in the cafeteria, they were approached by the hospital's director of employee and labor relations, Jeffrey Cahoon, and its labor relations representative, George Wesman. Anthony was talking to an off duty employee when Cahoon and Wesman confronted him and Scott. Cahoon accused them of holding a meeting in the cafeteria which Anthony denied. Cahoon replied that he would consider how to respond, but the hospital might file an unfair labor practice charge against them. Anthony and Scott then left the cafeteria and began posting information on bulletin boards throughout the facility until hospital officials had them escorted out of the building. The hospital also gave them written trespass warnings banning them from the facility for one year.

         On the same day Melvin Anderson, an employee of the hospital and an SEIU steward, posted information about the picket on a bulletin board in the sterile processing and dispensing department (SPD). Hospital officials then removed the posting and told Anderson he was not allowed to post union information on the SPD bulletin board. The next day Wesman asked Anderson if he had placed the SEIU information on the SPD bulletin board. As they talked, Wesman accused Anderson of violating the CBA and questioned him about Anthony's involvement in the bulletin board posting.

         More than five hundred people participated in the picket on June 24. On that day the hospital employed extra security guards and posted employees at three locations inside the facility to serve as greeters. The hospital instructed the greeters and security guards to approach anyone who was wearing a SEIU or MNA shirt or who was carrying a picket sign and ask them to stop displaying the shirt or sign or exit the building.

         At some point on that day, Richard Geurts, an off duty registered nurse and MNA member, entered the facility wearing a MNA shirt. The shirt had the MNA insignia on the front; the back was blank. Many of the picketers were wearing the same shirt. A senior human resources executive approached Geurts in the atrium and told him he could not wear the MNA shirt in the facility that day. Geurts asked the executive whether he should take the shirt off in the atrium. The executive responded by either telling Geurts to take off the shirt or by saying he did not care. Geurts removed his shirt, which left him bare chested in the atrium until he pulled another shirt out and put it on.

         MNA president Linda Hamilton and SEIU president Jamie Gulley attended the June 24 picket. After the union presidents participated in the picket that morning, they entered the facility around midday and headed towards the cafeteria. They were both wearing shirts bearing the insignia of their respective unions. Hamilton and Gulley purchased lunches and sat at a table in the cafeteria. While they were eating, union members approached them to ask questions. After the two had finished their lunches and were walking out of the facility, they were told by three separate hospital employees that they could not wear their union shirts in the facility. The two presidents refused to either leave or take off their shirts and decided to return to the cafeteria. While they were on their way some six security guards surrounded them and told them they could not conduct union business in the cafeteria.

         Gulley and Hamilton continued on into the cafeteria where they sat down at a table with between three to seven union members. This was not a prearranged meeting. The hospital's labor relations representative, Jeffrey Cahoon, approached them and said they could not conduct union business in the cafeteria. Gulley responded by stating that he was just talking to some union members he knew. Cahoon asked whether they were "talking about the Twins" or "talking about union business." Gulley responded that such a question was illegal to ask. Cahoon then stated that since they were in a public cafeteria, Gulley could not stop him from sitting next to them. Cahoon proceeded to sit three to six feet away and observe their activities. Wesman and the hospital's security manager, Rick Ramacher, joined Cahoon at his table. After this incident, some or all of the employees sitting with Gulley and Hamilton left. Hamilton and Gulley then left the facility.

         Three days after the picket, the hospital terminated Melvin Anderson who had worked for the hospital for eleven years. The hospital cited a record of tardiness as the reason for his termination. After Anderson's termination, he was hired as an SEIU organizer. Anderson entered the hospital on August 21, 2014 and proceeded to the cafeteria. He had with him a small rolling backpack which contained union flyers and materials. While he was in the cafeteria, Anderson approached an employee whom he had not yet met and began talking with him. Wesman went up to them and told Anderson he was not allowed to conduct union business in the cafeteria. Wesman and a security guard then escorted Anderson out of the hospital.

         The unions filed unfair labor practices charges against the hospital relating to these events during the summer of 2014. The Board's General Counsel subsequently issued a formal complaint against the hospital. A hearing was held before an ALJ, after which the judge determined that the hospital had violated the NLRA. These violations include: (1) discharging Anderson because of his union activity; (2) ejecting Anthony and Scott from the facility and banning their reentry for one year; (3) removing union literature posted by Anderson on the SPD bulletin board; (4) interrogating Anderson in August 2014; (5) interfering with union activities in the public cafeteria in June and August of 2014; (6) engaging in surveillance of Gulley and Hamilton on June 24; and (7) prohibiting Geurts, Gulley, and Hamilton from wearing shirts displaying union insignia on June 24. The ALJ dismissed additional allegations which are not at issue here.

         The Board unanimously affirmed the ALJ's rulings, findings, and conclusions. It also adopted a modified enforcement order. The hospital petitions for review of the charged violations 5, 6, and 7.

         II.

         The hospital does not contest the Board's conclusions that it violated the NLRA by (1) discharging Anderson based on his union activity; (2) ejecting union representatives Anthony and Scott from the facility and banning their reentry for one year; (3) removing union literature that Anderson had posted on a SPD department bulletin board; and (4) interrogating Anderson on August 21, 2014. The Board is thus entitled to summary enforcement of these uncontested portions of its order. See NLRB v. Bolivar-Tees, Inc., 551 F.3d 722, 727 (8th Cir. 2008).

         III.

         The hospital petitions for review of the Board's determination that it violated the NLRA by (1) interfering with union activities in the public cafeteria in June and August of 2014; (2) engaging in surveillance of Gulley and Hamilton on June 24; and (3) prohibiting Geurts, Gulley, and Hamilton from wearing shirts displaying union insignia on June 24. We will enforce a Board's order "as long as [it] has correctly applied the law and its factual findings are supported by substantial evidence on the record as a whole." Cintas Corp. v. NLRB, 589 F.3d 905, 912 (8th Cir. 2009) (internal quotation marks omitted). We define substantial evidence to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). This "standard of review affords great deference to the Board's affirmation of the ALJ's findings." Id. (internal quotation marks omitted).

         A.

         The hospital first contests the Board's determination that it violated Sections 8(a)(1) and 8(a)(5) of the NLRA when it interfered with nonemployee union representatives' use of the cafeteria on June 23, June 24, and August 21 of 2014. We analyze the alleged violations of Sections 8(a)(1) and 8(a)(5) in turn.

         1.

         The Board determined that the hospital's interference with the nonemployee union representatives' use of the facility's cafeteria was discriminatory and therefore violated Section 8(a)(1) of the NLRA. Section 7 of the Act states that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations." 29 U.S.C. § 157. Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" by Section 7. 29 U.S.C. § 158(a)(1).

         Although the NLRA primarily confers rights on employees, not nonemployee union representatives, "insofar as the employees' 'right of self-organization depends in some measure on [their] ability . . . to learn the advantages of self-organization from others, '" Section 7 of the NLRA "may, in certain limited circumstances, restrict an employer's right to exclude nonemployee union organizers from his property." Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992) (quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956)). The Board's General Counsel can prove that an employer's exclusion of nonemployee union representatives from its property violated Section 8(a)(1) by showing that "that the employer's access ...


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