Manor Care of Easton, PA., LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2011 Decided November 22, 2011

No. 10-1411

MANOR CARE OF EASTON, PA., LLC, DOING BUSINESS AS

MANORCARE HEALTH SERVICES - EASTON,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

SERVICE EMPLOYEES INTERNATIONAL UNION HEALTHCARE

PENNSYLVANIA (SEIU HEALTHCARE PA),

INTERVENOR

Consolidated with 11-1011

On Petition for Review and Cross-Application for

Enforcement of An Order of the National Labor Relations

Board

Charles P. Roberts, III argued the cause for petitioner.

With him on the briefs was Clifford H. Nelson Jr.

Kellie Isbell, Attorney, National Labor Relations Board,

argued the cause for respondent. With her on the brief were

John H. Ferguson, Associate General Counsel, Linda Dreeben,

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Deputy Associate General Counsel, and Julie B. Broido,

Supervisory Attorney. MacKenzie Fillow, Attorney, and Robert

J. Englehart, Supervisory Attorney, entered appearances.

Nicole G. Berner argued the cause for intervenor in support

of respondent. With her on the brief were Judith A. Scott and

Lela M. Klein.

Before: ROGERS, Circuit Judge, and WILLIAMS and

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Manor Care of Easton, PA, LLC, filed this

petition for review of an order of the National Labor Relations

Board. The Board held that Manor Care violated § 8(a)(1) and

(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1)

& (3), when it threatened and disciplined Trisha Miechur, a

certified nursing assistant and outspoken union supporter. Manor

Care contests both findings.* The Board has filed a cross-

application for enforcement of its order.

Section 8(a)(1) makes it unlawful for employers to

“interfere with, restrain, or coerce employees” in the exercise of

rights guaranteed by the Act. 29 U.S.C. § 158(a)(1). Shortly

after Manor Care supervisor Debra Kushnerick unlawfully

confiscated union literature from Miechur, she told Miechur to

*

Manor Care concedes a number of other violations, including

(1) unlawfully interrogating Miechur; (2) soliciting employee

grievances to discourage unionization; (3) granting wage increases and

lump sum bonuses to discourage unionization; and (4) confiscating

union literature. The Board is entitled to summary enforcement of

these uncontested findings. Flying Food Grp., Inc. v. NLRB, 471 F.3d

178, 181 (D.C. Cir. 2006).

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“stop worrying about the Union and worry about your job.” The

statement came during a confrontation over the literature and

soon after Miechur was unlawfully interrogated. Given these

circumstances, substantial evidence supports the Board’s finding

that Kushnerick’s statement was an unlawful threat of job loss.

See, e.g., Fieldcrest Cannon, Inc., 318 N.L.R.B. 470, 488

(1995), enforced in relevant part, 97 F.3d 65 (4th Cir. 1996).

Section 8(a)(3) makes it an unfair labor practice for an

employer to “discourage membership in any labor organization”

by “discriminat[ing] in regard to hire or tenure of employment.”

29 U.S.C. § 158(a)(3). The Board assumed, as shall we, that

Miechur urged Manor Care patients to support the union’s

cause. For this, she received a final written warning – the last

step before termination. To establish that the punishment was

unlawful, the Board must demonstrate that protected activity

was a motivating factor for the discipline. If the Board

succeeds, Manor Care may mount an affirmative defense by

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

of any anti-union considerations. Wright Line, 251 N.L.R.B.

1083, 1089 (1980); see also NLRB v. Transp. Mgmt. Corp., 462

U.S. 393, 401-03 (1983) (approving the Wright Line test).

Manor Care admits that Miechur’s union activity was a

motivating factor for her discipline. It defends on the ground

that it would have punished Miechur anyway. The Board’s

conclusion to the contrary has ample support. Although other

employees engaged in conduct similar to Miechur’s, Manor

Care neither investigated nor punished any one of them.

Miechur was disciplined without an inquiry into her actions, as

company policy required. And Manor Care premised its

discipline, at least in part, on Miechur’s expired disciplinary

history, an impermissible consideration under company rules.

We therefore conclude that substantial evidence supports the

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Board’s Wright Line determination. See, e.g., Tasty Baking Co.

v. NLRB, 254 F.3d 114, 126-27 (D.C. Cir. 2001).

In light of these conclusions, we need not consider the

Board’s alternative ground for its § 8(a)(3) ruling – that the

direct solicitation of health care patients here was a protected

activity under § 7 of the Act, 29 U.S.C. § 157. See 356 N.L.R.B.

No. 39, 2010 WL 4929679, at *4 n.13 (2010). For the reasons

discussed above, we deny the petition for review and grant the

Board’s cross application for enforcement.

So ordered.