Jackson Hospital Corp. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2011 Decided June 10, 2011

No. 10-1271

JACKSON HOSPITAL CORPORATION,

DOING BUSINESS AS KENTUCKY RIVER MEDICAL CENTER,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 10-1303

On Petition for Review and Cross-Application

for Enforcement of an Order of the National

Labor Relations Board

Kaitlin A. Kaseta argued the cause for the petitioner. Bryan

T. Carmody was on brief. Don T. Carmody entered an

appearance.

Kellie J. Isbell, Attorney, National Labor Relations Board,

argued the cause for the respondent. John H. Ferguson,

Associate General Counsel, Linda Dreeben, Deputy Associate

General Counsel and Julie B. Broido, Supervisory Attorney,

were on brief.

2

Before: HENDERSON, BROWN and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: 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.1

I.

On June 8, 1998, the Board certified the United

Steelworkers of America (Union) as the collective-bargaining

representative of various Hospital2 employees including

registered nurses and medical lab technicians. From the start,

the Union and the Hospital have had a rocky relationship,3

1

The NLRB also alleged violations of three other Hospital

employees’ rights. See infra note 6. The Hospital’s actions regarding

those employees are not before us.

2

The Hospital owns and operates the Kentucky River Medical

Center, a 55-bed acute care facility and full service hospital in

Jackson, Kentucky, staffed by about 300 employees.

3

Their early history included an unsuccessful decertification

attempt, a month-long strike and numerous unfair l0000abor practice

3

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.”4 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)

charges against the Hospital leading to a Board finding that the

Hospital violated section 8(a)(1), (3) and (5) of the Act.

4

A “swing bed” is a “dual-use” bed used to provide both acute

care and nursing care. Dist. Mem. Hosp. of Sw. N.C., Inc. v.

Thompson, 364 F.3d 513, 514 (4th Cir. 2004).

4

(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

5

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.”5 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

5

According to Combs, before she was suspended, Linkous asked

her: “ ‘You are not letting me give you this?’ ” while pointing “to

some papers on the front of her desk.” Hearing Tr. at 73. In response,

Combs again asserted she thought she had a right to have a

representative present. Id. at 74.

6

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, stating in

relevant part:

On Thursday, January 18, 2007 Kentucky River

Medical Center indefinitely suspended employee

Frances Lynn Combs when she was called in to a

disciplinary meeting and insisted on Union

representation. I hereby request you meet with Ms.

Combs and myself at your earliest convenience to

discuss same, preferably late today or early next week.

Letter from Randy Pidcock to Dominic Rentfro (Jan. 19, 2007)

(Joint Appendix (JA) at 165) (Pidcock Letter). Rentfro

responded by letter three days later, agreeing to accommodate

Pidcock’s request and promising to “defer making a final

decision . . . until after [Pidcock] ha[d] been afforded an

opportunity to meet as . . . requested, unless [Pidcock] advise[d]

[him] to the contrary.”” Letter from Dominic Rentfro to Randy

Pidcock (Jan. 22, 2007) (JA 166) (Rentfro Letter). He further

requested the meeting be deferred until the end of the

7

investigation when he had “a full opportunity to gather the facts

underlying . . . Combs’ suspension, and consult with Counsel.”

Id. Enclosed with Rentfro’s response was a second letter, of the

same date, from Linkous to Combs to confirm the latter’s

placement on“unpaid investigatory suspension” after she

“expressly refused to meet with [Linkous] without being

accompanied by Debra Adams or . . . Randall Pidcock.” Letter

from Debbie Linkous to Frances Lynn Combs (Jan. 22, 2007)

(JA 167).

The Hospital and the Union subsequently agreed to discuss

Combs’s suspension immediately preceding a bargaining session

that had been scheduled February 9, 2007 but the session was

cancelled because of a medical emergency in the family of the

only remaining Union bargaining team member. ALJ Dec. at 41

(NLRB Dec. at 28); Hearing Tr. at 1495-96 (Apr. 8, 2008)

(Rentfro; id. at 1518-22 (Pidcock). The two sides again planned

to meet immediately before the next scheduled bargaining

session on February 16, 2007 but this too was cancelled because

of the same Union member’s family medical emergency.

Hearing Tr. at 1496 (Apr. 8, 2008) (Rentfro); id. at 1522-24

(Pidcock). The two sides never scheduled another meeting on

the suspension nor did they in fact meet thereafter either to

bargain or to discuss the suspension. Id. at 1496 (Rentfro); id.

at 1524-25 (Pidcock).

Meanwhile, the NLRB General Counsel had filed a

complaint against the Hospital on August 11, 2005, alleging a

single unfair labor practice involving another employee. Other

allegations were added culminating in the instant charge based

on Combs’s investigatory suspension, which was added on

January 19, 2007. The parties entered into an informal

settlement agreement on August 22, 2007, which the Regional

Director vacated in October 2007, when he issued an amended

consolidated complaint. Order & Am. Consolidated Compl.,

Jackson Hosp. Corp., Cases 9-CA-42249 et al., ¶¶ 6-8 (Oct. 4,

8

2007). The complaint alleged inter alia that the Hospital

violated section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), by

suspending Combs based on her protected Union activity.6 Id.

¶¶ 5, 9. It also sought from the Hospital all records “necessary

to analyze the amount of backpay due.” Id. at 5.

The ALJ conducted a seven-day hearing beginning

November 27, 2007 and ending April 9, 2008. On July 29,

2008, he issued a decision finding the Hospital violated section

8(a)(3) and (1) when it suspended Combs “in an unlawfully

discriminatory manner,” “primarily motivated by animus against

her due to her protected activities.” ALJ Dec. at 2, 50 (NLRB

Dec. at 7, 33). In a decision dated August 27, 2010, a three-

member panel of the Board affirmed the ALJ’s determination

that the suspension violated section 8(a)(3) and (1). NLRB Dec.

at 1.

The Hospital timely petitioned for review and the Board

timely filed a cross-application for enforcement.

II.

“We must uphold an order of the Board unless it rests upon

a finding not supported by ‘substantial evidence’ or the Board

failed to apply the proper legal standard or departed from

precedent without giving a reasoned justification therefor.” S &

F Mkt. St. Healthcare LLC v. NLRB, 570 F.3d 354, 358 (D.C.

Cir. 2009) (quoting 29 U.S.C. § 160(f)). As discussed infra, we

6

The amended consolidated complaint also alleged the Hospital

discharged three other employees because of protected activity. The

ALJ dismissed the charges as to two of them but found the Hospital

violated the Act by discharging the third, a finding the Board reversed.

9

conclude the Board’s decision is not supported by substantial

evidence.7

The Board upheld the ALJ’s analysis under its decision in

Wright Line, 251 N.L.R.B. 1083 (1980), enforced, NLRB v.

Wright Line, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S.

989 (1982). Under the Wright Line test,

the general counsel must first show that the protected

activity was a motivating factor in the adverse

employment decision. If this prima facie showing is

made, the burden shifts to the employer to demonstrate

that it would have made the adverse decision even had

the employee not engaged in protected activity.

Int’l Union of Operating Eng’rs, Local 470 v. NLRB, 350 F.3d

105, 110 (D.C. Cir. 2003) (internal quotation marks omitted).

The Board affirmed the ALJ’s determination that the General

Counsel made a prima facie showing that Combs’s union

activity was a motivating factor of her suspension based on three

findings. First, the NLRB concluded, correctly, that Combs’s

union activity and the Hospital’s knowledge thereof were

undisputed. Linkous “admitted that she was aware of Combs’

active participation in contract negotiations and that Combs was

7

As a preliminary matter, the Hospital argues that the Board

lacked authority to issue its July 29, 2008 order directing the NLRB

Office of the Executive Secretary to transfer the case from the ALJ to

the Board because the Board at that time lacked a quorum and

therefore lacked statutory authority to transact business. See New

Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) (quorum of at

least three members required for Board to act). Even if the Board had

lacked authority to transfer the case at that time, it plainly had

authority under section 10 of the Act, 29 U.S.C. § 160, to decide the

case when it issued its final decision on August 27, 2010, by which

time its membership had reached a quorum. See NLRB Dec. at 1

(identifying three members on decision panel).

10

‘strong in the Union’ at the time Linkous suspended her.”

NLRB Dec. at 4. Second, the Board “infer[red] animus from the

circumstances surrounding Combs’ indefinite suspension,”

namely, “the conduct of management before, during, and after

the meeting with Combs at which she was indefinitely

suspended.” Id. At this point, the Board went off track.

According to the Board, the Hospital displayed animus

before and during the meeting because the three management

representatives “set up Combs by provoking her into insisting

on a Weingarten right that she did not in fact have.” Id. In

NLRB v. J. Weingarten, Inc., 420 U.S. 251, 262 (1975), the

Supreme Court approved the Board’s “recognition that § 7

guarantees an employee’s right to the presence of a union

representative at an investigatory interview in which the risk of

discipline reasonably inheres.” Long ago, however, the Board

clarified the Weingarten right, excluding from its reach a

meeting such as the one here:

As long as the employer has reached a final, binding

decision to impose certain discipline on the employee

prior to the interview, based on facts and evidence

obtained prior to the interview, no Section 7 right to

union representation exists under Weingarten when the

employer meets with the employee simply to inform

him of, or impose, that previously determined

discipline.

Baton Rouge Water Works Co., 246 N.L.R.B. 995, 997 (1979);

accord Haw. Tribune-Herald, 356 N.L.R.B. No. 63, at 14

(2011). Combs had no Weingarten right to representation

because Linkous and Thatcher had already decided on the form

of discipline to impose—a verbal warning—and the sole

purpose of the meeting was to deliver the warning to her.

According to the ALJ’s provocation theory—accepted by

two of the Board panel’s three members—the three managers

11

deliberately schemed to, and did, manipulate Combs into

invoking her non-existent Weingarten right in order to justify

suspending her.8 Apparently, the scheme involved anticipating

that Combs would bring a companion to the meeting and that

she—a long time Union member and supporter as well as a

member of the Union’s bargaining team but unaware of the

long-established contour of the Weingarten representation

right—would insist on her non-existent right to representation

to the point of refusing to participate in the meeting without it.

The Board’s theory is mere speculation without a jot of

evidentiary support in the record. Granted, the managers could

have foreseen Combs would likely attend the meeting

accompanied by another employee—as she did on January 10,

2007 and apparently on other occasions as well. See Hearing Tr.

at 1130 (Apr. 7, 2008) (Linkous) (“[N]ormally when she came

to my office, she did have someone with her.”). In addition, it

is undisputed that Linkous suspended her because she refused to

continue with the meeting unless she was afforded the non-

existent Weingarten right to have Union representation at the

meeting. There is no evidentiary link, however, to causally

connect the two facts. The record contains no evidence, for

example, that during the pre-meeting conference, the managers

discussed the Weingarten representational right or its limitation

or even (contrary to the Board’s assertion on appeal) “the

possibility that Combs might refuse to participate without union

representation.” NLRB Br. at 19 (citing Hearing Tr. at 1129-30

(Apr. 7, 2008) (Linkous)) (emphasis added); id. at 1604-05

(Apr. 8, 2008) (Mitchell). The pre-meeting conference appears

from the record to have been nothing other than an opportunity

8

Member Schaumber “f[ound] it unnecessary to rely upon the

theory that ‘management set up Combs by provoking her into insisting

on a Weingarten right she did not in fact have’ ” and “d[id] not agree

that . . . managers met to discuss what steps to take if Combs invoked

a Weingarten right.” NLRB Dec. at 4 n.10.

12

for all three managers to prepare for the meeting with Combs,

ensuring they all knew what discipline was to be imposed and

what would happen if Combs refused to meet with them—a

precaution that proved prudent as events unwound. There is no

record evidence that the three were planning to bushwhack

Combs, as the ALJ surmised and the Board agreed. The record

reflects even Combs herself did not see it that way. See Hearing

Tr. at 74 (Nov. 27, 2007) (Combs) (“I have no personal issues

with you. You all have treated me fairly.”).9

Nor does the Board fare any better in its reliance on the

Hospital’s post-suspension conduct. The Board concluded that

the ALJ

reasonably found that the “contrast between the

intended length of investigatory suspensions under the

Hospital’s policies and the interminable length of

Combs’ suspension,” coupled with the “disparity

between Combs’ protracted suspension and the

treatment of other employees” placed on investigatory

suspension, supports a finding of animus directed

against Combs for her participation in protected union

activities.

9

The Board found it significant that “after Linkous told Combs

that she had no right to a representative,” Mitchell “maintained what

the judge described as a ‘strange and disturbing silence’ ”

notwithstanding “as the authoritative representative of the human

resources department, [she] could have explained Combs’ rights to

her, and possibly averted Combs’ walkout.” NLRB Dec. at 4 (quoting

ALJ Dec. at 46 (NLRB Dec. at 31)). Mitchell was under no

obligation, however, to explain to Combs why she had no Weingarten

right—especially given her limited role at the meeting convened by

chief nursing officer Linkous in order to discipline a member of her

nursing staff. As Mitchell observed, she “wasn’t the one doing the

meeting.” Hearing Tr. at 1597 (Apr. 6, 2008) (Mitchell).

13

NLRB Dec. at 4 (quoting ALJ Dec. at 48 (NLRB Dec. at 32)).

In support, the Board asserted that “[t]he record shows that

prior investigative suspensions at the facility typically took

anywhere from 3 days to 2 weeks,” noting that “the

investigatory suspension of James Fields, another alleged

discriminatee in this case, led to a careful investigation to

determine the facts and consultation with medical experts, yet

lasted only 3 weeks.” Id. nn.11 & 12. The undisputed evidence,

however, manifests the reason for the cited “disparity”—and it

had nothing to do with the pace of the Hospital’s investigation

of Combs’s conduct. In his letter to Rentfro, Pidcock expressly

requested that he and Combs together meet with Rentfro

regarding Combs’s suspension. Pidcock Letter. In his letter,

Rentfro agreed to accommodate Pidcock’s request and to defer

a final decision on Combs until Pidcock was “afforded an

opportunity to meet as . . . requested,” unless Pidcock “advise[d]

[him] to the contrary.” Rentfro Letter. Subsequently, the parties

scheduled two successive meetings for this purpose—first on

February 9, 2007 and then on February 16, 2007—each of which

the Union cancelled. The Union makes no claim it subsequently

attempted to reschedule the meeting Pidcock had requested of

Rentfro nor does it explain why its failure to do so should be

overlooked. Under these circumstances, it makes no sense to

place blame on the Hospital, as the Board has done, for the lack

of communication between them. After it cancelled the

meetings, the Union itself sat idle as Combs’s potential backpay

piled up.

Having offered insubstantial evidence, if any, to establish

that Combs’s protected union activity was a motivating factor in

her suspension, the General Counsel failed to carry his burden

under the first prong of the Wright Line test so as to make out a

prima facie case and shift the burden of proof to the Hospital.

The Board, therefore, had no basis to conclude, as it did, that the

Hospital violated section 8(a)(3) and (1) of the Act.

14

For the foregoing reasons, we grant the Hospital’s petition

for review and deny the Board’s cross-application for

enforcement.

So ordered.