DHSC, LLC v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted November 21, 2019 Decided December 20, 2019

No. 15-1426

DHSC, LLC, DOING BUSINESS AS AFFINITY MEDICAL CENTER,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

NATIONAL NURSES ORGANIZING COMMITTEE,

INTERVENOR

Consolidated with 15-1499

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Bryan T. Carmody and Kaitlin A. Kaseta were on the briefs

for petitioner.

Peter B. Robb, General Counsel, National Labor Relations

Board, David Habenstreit, Acting Deputy Associate General

Counsel, Elizabeth Heaney, Supervisory Attorney, and Barbara

A. Sheehy, Attorney, were on the brief for respondent.

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Nicole J. Daro and Carol A. Igoe were on the brief for

intervenor National Nurses Organizing Committee in support of

respondent.

Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: DHSC, LLC operated Affinity

Medical Center, a hospital in Massillon, Ohio. Seven years ago,

Affinity’s registered nurses voted to unionize. The National

Labor Relations Board found that Affinity committed four unfair

labor practices in the following months by: (1) disciplining,

firing, and reporting to the state nursing board a pro-union

nurse; (2) excluding a union organizer from the hospital; (3)

threatening nurses who filled out union complaint forms; and (4)

refusing to bargain with the union. DHSC, LLC, 362 N.L.R.B.

654 (2015). Because the Board’s determinations with respect to

the first three charges are supported by substantial evidence, and

because we are without jurisdiction to review the only defense

that Affinity raises to the refusal-to-bargain charge, we deny

Affinity’s petition for review and grant the Board’s cross-

application for enforcement.1

I

The principal unfair labor practice charge arises out of

Affinity’s adverse actions against a pro-union nurse soon after

the union election. The election, which the union won, took

1

This petition for review and cross-application for enforcement

were considered on the record from the National Labor Relations

Board and on the briefs of the parties. See FED. R. APP. P. 34(a)(2);

D.C. CIR. R. 34(j).

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place on August 29, 2012. That same day, Affinity began an

investigation that led to the firing of Ann Wayt, a 23-year

veteran of Affinity with no prior disciplinary record. See DHSC,

362 N.L.R.B. at 660 & n.8. Affinity alleged that Wayt failed to

conduct a head-to-toe exam or round on a patient but recorded

that she did so in the patient’s chart. The next week, Affinity

gave Wayt a written warning for an unrelated, alleged failure to

correct a discrepancy in a medication-storage system. On

September 26, 2012, Affinity fired Wayt and reported her to the

Ohio Board of Nursing for the exam and recording incident.

The union filed an unfair labor practice charge alleging that

Wayt’s disciplinary warning, firing, and reporting were

retaliation for her union support. An Administrative Law Judge

(ALJ) and the National Labor Relations Board agreed.2 Without

deciding the validity of the allegations against Wayt, the Board

concluded that Affinity’s actions were retaliatory in light of

“strong circumstantial evidence[,] . . . including the timing of

discipline, the inadequate and indifferent nature of [Affinity’s]

investigation of Wayt’s alleged misconduct, disparate treatment,

and the pretextual nature of the allegations against her.” DHSC,

362 N.L.R.B. at 654 n.4.

The second unfair labor practice charge stems from a letter

sent by union organizer Michelle Mahon in Wayt’s defense.

That letter gave Wayt’s account of the exam and recording

incident, and included the patient’s room number and other

details but not the patient’s name. Affinity’s patient privacy

officer, Patricia Kline, concluded that Mahon violated the Health

Insurance Portability and Accountability Act (HIPAA) by

2

The Board adopted the ALJ’s findings and conclusions with

minor modifications not relevant here. See DHSC, 362 N.L.R.B. at

654 & nn.3-4. For simplicity, this opinion attributes the ALJ’s

findings and conclusions to the Board.

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copying union officials on the letter. Thereafter, Affinity

banned Mahon from hospital grounds. The Board concluded

that, even if Mahon had violated HIPAA, the extent of her

punishment was discriminatorily motivated. DHSC, 362

N.L.R.B. at 654 n.4.

The third unfair labor practice charge involves union-issued

complaint forms. The union encouraged nurses to use these

forms to “work collaboratively” and “speak up together” about

unsafe hospital practices. Hr’g Tr. 478 (J.A. 202). Hospital

supervisor Susan Kress did not take kindly to the forms.

According to Kress herself, she stood in her unit and said: “I

feel like slapping these on your forehead so you can walk

around and look how stupid you look with them.” Id. at 684

(J.A. 257). According to another nurse, Kress said: “[I]f you

fill out one of these forms, I’m going to smash it through your

forehead.” Id. at 409 (J.A. 176). That nurse also recounted

other retaliation and threats Kress made to nurses who filled out

the forms. The union contended that this, too, was an unfair

labor practice, and the Board agreed.

The fourth unfair labor practice charge is that Affinity

refused to bargain with the union, which the Board certified on

October 5, 2012. Affinity acknowledges that it refused to

bargain. Answer 4 (J.A. 30). It did so intentionally, in order to

challenge the union’s certification in the unfair labor practice

proceeding. Affinity Br. 7; see Oberthur Techs. of Am. Corp. v.

NLRB, 865 F.3d 719, 723 (D.C. Cir. 2017). The Board

concluded that the union was properly certified, making

Affinity’s refusal to bargain an unfair labor practice.

II

Affinity’s petition largely comes down to an attack on the

Board’s factual conclusions. We “must uphold the judgment of

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the Board unless, upon reviewing the record as a whole, we

conclude that the Board’s findings are not supported by

substantial evidence, or that the Board acted arbitrarily or

otherwise erred in applying established law to the facts of the

case.” Am. Baptist Homes of the W. v. NLRB, 858 F.3d 612, 614

(D.C. Cir. 2017) (internal quotation marks omitted). Substantial

evidence is not a high bar. “It means -- and means only -- such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019) (internal quotation marks omitted).

The Board’s decision easily clears that bar.

1. First, the Board properly concluded that Affinity

committed an unfair labor practice by disciplining, firing, and

reporting Wayt. To determine whether employee discipline

constitutes an unfair labor practice, we apply the Board’s Wright

Line test. See Wright Line, a Div. of Wright Line, Inc., 251

N.L.R.B. 1083 (1980). To state a prima facie case, the Board’s

General Counsel must show: (1) that the employee engaged in

protected activity; (2) that the employer knew about that

activity; and (3) that “the protected activity was a motivating

factor in the employer’s decision to take adverse action.” Inova

Health Sys. v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015) (internal

quotation marks omitted). The employer can rebut this case by

showing that “it would have taken the same action in the

absence of the unlawful motive.” Id. (internal quotation marks

omitted).

The first two elements of Wright Line are established by the

undisputed facts that Wayt’s name and photograph prominently

appeared on a pro-union flyer (as well as on a poster in the

cafeteria) in the week before the election and that two key

managers involved in her warning and firing knew about Wayt’s

pro-union activity. Hr’g Tr. 116-17, 151, 423-24 (J.A. 99-100,

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110, 179-80); Flyer (J.A. 436). To show motive, the Board

focused on the timing of the adverse actions, the inadequate

investigation, and disparate treatment. All of those are relevant

under our precedents. See Inova, 795 F.3d at 82-84; Tasty

Baking Co. v. NLRB, 254 F.3d 114, 126 (D.C. Cir. 2001);

Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 737 (D.C.

Cir. 2000).

The Board’s determination about motive is supported by

substantial evidence. Affinity initiated the investigation that led

to Wayt’s firing the very day of the union election; the

medication-storage incident that led to the written warning took

place the next day. DHSC, 362 N.L.R.B. at 662, 663. With

respect to Wayt’s written warning, the Board noted that Wayt

did not violate any hospital policy and that other nurses were not

disciplined for similar conduct. Id. at 670. With respect to the

firing and reporting, the Board found that Affinity had no basis

for concluding that Wayt did not perform the head-to-toe exam

when it decided to fire her, delayed interviewing a key witness

until after it decided to fire her, and repeated a false claim that

Wayt did not enter the patient’s room for three hours. Id. at

661-62, 664-66.

The Board also found that Affinity treated Wayt unusually

harshly. A nurse who faced similar allegations of omitting and

misrepresenting care received only a warning. Id. at 667. In

fact, the only other nurse fired or reported to the Ohio Board of

Nursing for a first offense had taken a photograph of a deceased

patient after the patient’s eyeballs were removed for

transplantation. Id. Collectively, this circumstantial evidence

provides substantial support for the Board’s determination that

Affinity discriminatorily punished Wayt.

To rebut this determination, Affinity must show that, but for

anti-union animus, “it would have fired the employee, not that

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it could have done so.” Bally’s Park Place, Inc. v. NLRB, 646

F.3d 929, 937 n.5 (D.C. Cir. 2011) (internal quotation marks and

alterations omitted). Affinity argues only that it had a valid

basis for firing Wayt -- in other words, that it could have done

so. In light of the Board’s careful analysis, its conclusion that

Affinity committed an unfair labor practice in disciplining,

firing, and reporting Wayt is supported by substantial evidence.

2. The Board’s conclusion that Affinity excluded Mahon

from its property out of anti-union animus is also supported by

substantial evidence. Under Board law, “selectively and

disparately denying nonemployee union organizers access” to a

facility is an unfair labor practice. S. Md. Hosp. Ctr., 293

N.L.R.B. 1209, 1216 (1989). Kline, Affinity’s privacy officer,

testified that she would normally issue a verbal warning in this

situation. Hr’g Tr. 1160 (J.A. 363). But when asked whether

the letter “raised a different problem” because it “was sent to the

individuals it was sent to,” she responded that “it increased the

exposure of the violation.” Id. That testimony is ambiguous.

She could have meant that Mahon’s letter was worse because it

went to people outside the hospital, or she could have meant that

it was worse because it went to union officials. Affinity

contends that Kline meant the former. The Board concluded

that she meant the latter. On substantial evidence review, we

defer to the Board’s reasonable reading of the testimony.

3. Affinity does not dispute that Kress, the hospital

supervisor, threatened and retaliated against nurses who filled

out the union-issued complaint forms.3 Instead, its sole

3

The Board adopted the ALJ’s findings that Kress “threaten[ed]

to plaster [the] forms on the forehead of any employee who submitted

such a form; more closely scrutiniz[ed] patient charts; stat[ed] how

much she would enjoy disciplining a prominent union supporter; and

retaliat[ed] against employees whom she suspected of submitting [the]

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argument in this court is that those forms did not constitute

protected activity because they were outside the hospital’s usual

reporting system. But it is an unfair labor practice to retaliate

against employees for engaging in “concerted activities for the

purpose of . . . mutual aid or protection,” 29 U.S.C. § 157; see

id. § 158(a)(1), even if those activities “ignored an employer’s

chain of command,” Yellow Enter. Sys., 342 N.L.R.B. 804, 821

(2004). The complaint forms, which the nurses used to “speak

up together” about unsafe hospital practices, Hr’g Tr. 478 (J.A.

202), plainly constitute such a concerted activity.

4. Finally, the only defense that Affinity raises in this court

to the refusal-to-bargain charge (a defense that it also raises with

respect to the other three charges) is that the Board’s Acting

General Counsel lacked authority to prosecute the complaint

because his continued service was invalid under either the

National Labor Relations Act, 29 U.S.C. § 153(d), or the Federal

Vacancies Reform Act, 5 U.S.C. § 3345(b)(1); see Sw. Gen.,

Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), aff’d, 137 S. Ct. 929

(2017). Those contentions need not detain us because Affinity

did not raise them before the Board. As a consequence, we lack

jurisdiction to consider them. 29 U.S.C. § 160(e); H&M Int’l

Transp., Inc. v. NLRB, 719 F. App’x 3, 4 (D.C. Cir. 2018). The

Board’s sua sponte discussion of the Acting General Counsel’s

authority, DHSC, 362 N.L.R.B. at 654 n.1, does not excuse

Affinity’s failure to raise the issue on its own. HTH Corp. v.

NLRB, 823 F.3d 668, 673 (D.C. Cir. 2016); Contractors’ Labor

Pool, Inc. v. NLRB, 323 F.3d 1051, 1061 (D.C. Cir. 2003).

forms by reducing the number of nurses in the intensive care unit.”

DHSC, 362 N.L.R.B. at 654 n.2.

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III

For the foregoing reasons, we deny Affinity’s petition for

review and grant the Board’s cross-application for enforcement.4

So ordered.

4

Affinity advises us that its Massillon, Ohio facility closed in

March 2018, nearly three years after the Board’s decision. We leave

it to the Board to determine in compliance proceedings how its order

can be carried out. See Bolivar Tee’s Mfg. Co. v. NLRB, 61 F. App’x

711, 711 (D.C. Cir. 2003); Cap Santa Vue, Inc. v. NLRB, 424 F.2d

883, 886 (D.C. Cir. 1970).