National Labor Relations Board v. NSL Country Gardens LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 19-cv-10145-RGS

PAUL J. MURPHY, Acting Regional Director,

Region 01, National Labor Relations Board, for and on

Behalf of the NATIONAL LABOR RELATIONS BOARD

v.

NSL COUNTRY GARDENS, LLC

MEMORANDUM AND ORDER ON PETITIONER’S

PETITION FOR TEMPORARY INJUNCTION

UNDER SECTION 10(j) OF NATIONAL LABOR RELATIONS ACT

May 10, 2019

STEARNS, D. J.

The National Labor Relations Board (NLRB or Board) brought this

petition seeking a preliminary injunction pursuant to section 10(j) (29 U.S.C.

§ 160(j)) of the National Labor Relations Act (NLRA). The NLRB asks the

court to compel NSL Country Gardens, LLC (NSL), to reinstate two members

of the New England Healthcare Employees Union 1199, who also served as

Union delegates. The NLRB claims that these former employees were

discharged in retaliation for their union activities and that NSL’s “for cause”

justification for their firing is pretextual. The NLRB further asks the court to

reinstate the collective bargaining agreement (CBA) from which NSL

withdrew its recognition despite “continued majority employee support.”

See Reply at 4; Pet. at 11. The motion for injunctive relief is before the court

based on an administrative record that closed on April 26, 2019.1 See Dkt

# 20. The court heard argument from the parties on May 8, 2019.

The factual background as gleaned from the record is as follows. NSL

operates a residential healthcare facility in Swansea, Massachusetts. On July

3, 2016, NSL recognized the Union as the exclusive collective bargaining

agent for the following two groups of employees, referred to as Unit A and

Unit B. Unit A consisted of

[a]ll full-time and regular part-time Registered Nurses;

excluding all other Employees, Director of Nursing, Supervisor

of Nursing, Assistant Supervisors of Nursing, Food Service

Supervisor, First Cook, Maintenance Supervisor,

Housekeeping/Laundry Working Supervisor, Social Worker,

other Professional Employees, Managerial Employees,

Temporary Employees, Guards and Supervisors as defined in the

Act.

Unit B was comprised of

[a]ll full-time and regular part-time Licensed Practical Nurses,

Nurses’ Aides, Orderlies, Technical Employees, Kitchen

Employees, Housekeeping Employees, Maintenance Employees,

and Laundry Employees; excluding all other Employees,

Registered Nurses, Director of Nursing, Supervisor of Nursing,

Assistant Supervisors of Nursing, Food Service Supervisor, First

Cook, Maintenance Supervisor, Housekeeping/Laundry

Working Supervisor, Social Worker, Professional Employees,

1 The NLRB’s administrative hearings began on December 11, 2018,

before Administrative Law Judge Geoffrey Carter. Hearings were held on

December 12 and 13, 2018, and over fourteen days between February 4, 2019,

and the closing date of April 26, 2019.

Managerial Employees, Temporary Employees, Guards and

Supervisors as defined in the Act.

As negotiated, the CBA was to be in effect from November 1, 2016, through

October 31, 2018.

On July 6, 2018, NSL withdrew from the CBA after an apparent

majority of the nursing home’s employees signed a petition demanding that

the Union be ousted “immediately.” On July 9, 2018, NSL suspended Union

delegate-employee Stephanie Sullivan, and, on July 11, 2018, discharged her,

allegedly for leaving her work area on an unassigned break to solicit another

employee on behalf of the Union. GC-SS1; Tr. 707. On July 16, 2018, NSL

suspended delegate-employee Karen Hirst, and three days later terminated

her for allegedly failing to report a patient-on-patient altercation. Tr. at 831;

GC 61(e)-(f). After an investigation, the NLRB charged NSL with terminating

Sullivan and Hirst for their steadfastness in support of the Union and as a

warning to other employees who might be similarly inclined.

The issues presented by the Petition are: (1) whether there is

reasonable cause to believe that NSL violated the NLRA when it withdrew

recognition from the Union and discharged Sullivan and Hirst; and (2)

whether interim injunctive relief is “just and proper.” Pye on Behalf of

N.L.R.B. v. Sullivan Bros. Printers, Inc., 38 F.3d 58, 63 (1st Cir. 1994).

Section 10(j) of the NLRA provides that a Regional Director may petition a

federal district court for interim injunctive relief pending the NLRB’s final

resolution of an alleged unfair labor practice. See McDermott ex rel. NLRB

v. Ampersand Publ’g, LLC, 593 F.3d 950, 957 (9th Cir. 2010). In considering

a petition for interim relief under section 10(j), a district court’s role is

narrowly circumscribed. It “must limit its inquiry to whether (1) the Board

has shown reasonable cause to believe that the defendant has committed the

unlawful labor practices alleged and (2) whether injunctive relief is, in the

words of the statute, ‘just and proper.’” Sullivan Bros. Printers, Inc., 38 F.3d

at 63. “In assessing whether the Board has shown reasonable cause, the

district court need only find that the Board’s position is ‘fairly supported by

the evidence.’” Id., quoting Asseo v. Centro Medico del Turabo, 900 F.2d

445, 450 (1st Cir. 1990) (noting that the issue is whether the NLRB’s theory

of a violation is substantial and not frivolous). The Board need not at the

injunctive stage definitively prove that the alleged act constitutes an unfair

labor practice; rather, the prayer should be granted unless the NLRB’s legal

or factual theories are “fatally flawed.” Silverman ex rel. NLRB v. Major

League Baseball Player Relations, 67 F.3d 1054, 1059 (2d Cir. 1995). The

court should not attempt to resolve contested issues of fact, and rather defer

to the Board’s characterization of the facts so long as it is “within the range

of rationality.” Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 158 (1st Cir.

1995).

At the second step of the inquiry, in deciding whether to grant

injunctive relief,

the Board faces a much higher hurdle, for here the district court

must examine “the whole panoply of discretionary issues with

respect to granting preliminary relief.” Thus, the district court

must apply the familiar, four-part test for granting preliminary

relief. Under this test, the Board must demonstrate:

(1) A likelihood of success on the merits; (2) The potential

for irreparable injury in the absence of relief; (3) That such

injury outweighs any harm preliminary relief would inflict

on the defendant; and (4) That preliminary relief is in the

public interest.

When . . . the interim relief sought by the Board “is essentially the

final relief sought, the likelihood of success should be strong.”

Sullivan Bros. Printers, Inc., 38 F.3d at 63 (citations omitted and emphasis

in original). Courts in this Circuit have customarily recognized the unlawful

withdrawal of union recognition and the retaliatory termination of union

employees as unfair labor practices for which §10(j) interim injunctive relief

is appropriate. See, e.g., Centro Medico, 900 F.2d at 454-455; Asseo v. Pan

Am. Grain Co., 805 F.2d 23, at 26-27; Pye ex rel NLRB v. YWCA of Western

Massachusetts, 419 F. Supp 2d 20, 22-23 (D. Mass. 2006); Walsh v. Liberty

Bakery Kitchen, Inc., 2017 WL 2837006, at *1 (D. Mass. June 30, 2017).

NSL, for its part, maintains that too many relevant considerations are

“unexplored or insufficiently explored in the administrative record” to

warrant the granting of section 10(j) relief. Opp’n at 4. It cites a number of

mostly generic concerns: (1) the potentially adverse impact on employee

morale in reinstating employees otherwise properly dismissed, see Garcia v.

High Flying Foods, 2015 WL 773054, *20 (S.D. Cal. Feb. 12, 2015); (2)

whether the discharged employees have secured alternative employment or

desire to return to their former jobs, see, e.g., McDermott v. Ampersand

Publ’g LLC, 2008 WL 8628728, at *13 (C.D. Cal. May 22, 2008); (3) whether

the terminations have adversely impacted the willingness of the remaining

employees to seek union representation, see NLRB v. Prime Healthcare

Servs., 2017 WL 2192970, at *5 (D. Nev. May 18, 2017); (4) whether the

terminations have chilled the willingness of the remaining employees to file

charges with the Board, see NLRB v. P*I*E Nationwide, Inc., 878 F.2d 207,

210 (7th Cir. 1989); (5) whether an order of reinstatement would result in the

layoff of existing employees, see McDermott, 2008 WL 8628728, at *14; and

(6) whether there has been any diminishing of the wages and benefits of

existing employees attributable to the termination of the CBA, see Osthus v.

TruStone Fin. Fed. Credit Union, 182 F. Supp. 3d 901, 913-914 (D. Minn.

2016). NSL also cites McKinney v. Creative Vision Res., LLC, 783 F.3d 293,

299 (5th Cir. 2015) (“[F]or purposes of § 10(j), a labor practice must lead to

exceptional injury, as measured against other unfair labor practices” and “a

district court . . . must issue specific findings of fact that suggest harm

requiring § 10(j) injunctive relief.”).2

This latter observation may be a bit of an overstatement. In this

Circuit, the law places rather strict limits on the ability of a district court to

make differential fact-finding decisions in a section 10(j) context. Rather, it

must accept the Board’s characterization of the facts so long as they fall

“within the range of rationality.” Rivera-Vega, 70 F.3d at 158. While this

may be an instance of excessive Chevron deference, it is not for a district

court to defy the governing standard.

Turning to the load-bearing wall of injunctive relief, I am satisfied that

that there is substantial evidence in the administrative record to support the

NLRB’s finding of an unfair labor practice. Accepting the NLRB’s factual

characterizations as I must, the record portrays a not-so-subtle effort by

NSL’s Administrator, Jamie Belezarian, to instigate and abet a campaign by

2 The NLRB represents that it advised NSL on April 17, 2019, that it

could avail itself of the opportunity to present contrary “just and proper”

evidence during the final three days of the administrative hearing in advance

of this court’s May 8 hearing but that NSL “inexplicably . . . failed to do so.”

Reply, at 2 n.3, citing South Jersey Sanitation Corp., 2011 WL 5868413, at

*1 n.1 (N.L.R.B. March 7, 2011).

April Birch, an anti-Union employee, to persuade fellow employees to

decertify the Union. In addition to permitting Birch to collect signatures on

a decertification petition during work hours and in work areas, Belezarian

(to cite a few of the many instances in the administrative record) recruited

other NSL managers to support Birch’s petition drive, including then-Staff

Development Coordinator Cassandra Sousa, then-Director of Nursing

Heather Perry, then-Minimum Data Set (MDS) Coordinator Mallory O’Kane,

then-Assistant Director of Nursing Katherine Minyo, and Nurse Supervisor

Samantha Logan. See Tr. 83, 84-86, 155, 746-747, 810-813, 1490. Belezarian

regularly complained that the Union was an impediment to retaining staff

and managing the nursing home, that she wanted the Union out because it

was “a thorn in her side,” and that she had “ways” to accomplish that goal.

Tr. 241-246, 297, 303-304, 313, 330, 356.

The timing and circumstances of the suspensions and terminations of

Sullivan and Hirst, both of whom were long-time (30 plus years) employees

at the home, are also suspect. While Birch was circulating the decertification

petition, Sullivan made no secret of her support of the Union, extolling the

benefits of union representation, handing out supporter buttons, and

initiating a pro-Union counter-petition. GC 30; Tr. 673, 724, 748-749.

Shortly after Belezarian confronted an employee wearing one of Sullivan’s

Union buttons, Tr. 675, 815, she and Joe Veno, NSL’s Vice President of

Operations, called Sullivan into Belezarian’s office. Tr. 705-706. They

accused Sullivan of an unauthorized absence from her workstation and told

her that she was being suspended pending an investigation. Tr. 707-708,

889.3 Despite her vehement denials of the accusation, she was dismissed two

days later. Tr. 720-722.

Like Sullivan, Hirst worked at NSL for more than 30 years. Tr. 942.

She was also a long-time delegate for the Union. Upon learning of the

decertification petition, and despite being on vacation, Hirst messaged

several of her coworkers to voice her support for the Union. Tr. 960-965; GC

KH-1. Within minutes of sending the message, Hirst was informed that

Belezarian was displeased with her sending pro-Union messages to

employees. Tr. 965. Believing that Stacy Hayes, Belezarian’s sister-in-law,

had shared the messages with her, Hirst sent Hayes a mouse emoji. A few

days later, Veno charged Hirst with a failure to report an incident involving

a patient altercation which she had testified she had not seen or known

about. At least one employee was fired for her refusal to participate in

3 Sullivan was issued a Disciplinary Action Report, which stated,

“Solicitation & Distribution: Leaving work area on unassigned break to

solicit another employee while the other employee also was not on an

assigned break in a resident area (Dining Room).” GC-SS 1; Tr. 707.

management’s “case against Karen . . . in order to terminate her.” Tr. 833.

Hayes and Activities Assistant Ariana Federici-McCarthy were asked by

Belezarian to revise their statements to add that Hirst had observed the

incident and that they had asked her to report it. Tr. 799. Despite the fact

that three other employees initially wrote statements supporting Hirst’s

account of the incident, Tr. 799, 801-802, 831-832; GC 61(b)-(d) and (g)-(h),

840-841, she was terminated a few days later.

The remaining three injunctive factors also favor the Board. The

prospect of irreparable harm to the Union from its enforced absence from

the workplace is plain. As the First Circuit observed in a similar case, “there

was a very real danger that if [the employer] continued to withhold

recognition from the Union, employee support would erode to such an extent

that the Union could no longer represent those employees. At that point, any

final remedy which the Board could impose would be ineffective.” Centro

Medico, 900 F.2d at 454.4 In this latter vein, there is evidence in the record

supporting the Board’s assertion that NSL “employees have suffered – and

continue to suffer – the loss of just cause discipline protections, a grievance

4 In another similar case, the Seventh Circuit recognized that “[a]s time

passes, the benefits of unionization are lost and the spark to organize is

extinguished. The deprivation to employees from the delay in bargaining

and the diminution of union support is immeasurable.” NLRB v. Electro-

Voice, Inc., 83 F.3d 1559, 1573 (7th Cir. 1996).

arbitration procedure, and health and safety protections, none of which can

[be] remedied by a Board order in due course.” Reply at 7. The harm to

Sullivan and Hirst of having been summarily booted out of a life-long

vocation is also plain. The balance of the hardships favors the Union because

in the absence of injunctive relief, NSL will benefit from its unfair labor

practices while the Union is forced to wait for reinstatement in an

increasingly oppositional environment. Nor is an order to return to the

bargaining table a satisfactory form of substitute relief. “[W]hen the

[employer] is not compelled to do anything except bargain in good faith, the

risk from a bargaining order is minimal.” Small v. Avanti Health Sys., LLC,

661 F.3d 1180, 1196 (9th Cir. 2011). The employer is not required “to do

anything that would cause it harm; it need do nothing more than follow the

ordinary obligations of an employer under the law.” Id.

Finally, the public interest is served by injunctive relief in the sense

that society, through Congress, has embraced the aims of the NLRA as

furthering the goal of a just society. Pan Am. Grain Co., 805 F.2d at 28.

ORDER

For the foregoing reasons, the petition for injunctive relief will be

granted. The NLRB will submit as soon as practicable a proposed form of

injunctive order for the court’s approval, together with the affidavits of

Sullivan and Hirst indicating whether they desire to be reinstated to their

former positions at NSL.

SO ORDERED.

/s/ Richard G. Stearns__________

UNITED STATES DISTRICT JUDGE