# Evergreen Healthcare, Inc. v. National Labor Relations Board

> Court of Appeals for the Sixth Circuit · January 17, 1997 · 104 F.3d 867

URL: https://www.frixlaw.com/law-library/cases/6944317

## Case

- **Full name:** EVERGREEN HEALTHCARE, INC., d/b/a Willow Ridge Living Center, Petitioner/Cross-Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 17, 1997
- **Citations:** 104 F.3d 867
- **Precedential status:** Published
- **Opinion:** Concurring in part by Jones
- **Judges:** Daughtrey, Jones, Kennedy
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6944317

## Opinion text

NATHANIEL R. JONES, Circuit Judge,
concurring in part and dissenting in part.
I concur with the result in this case. I write separately because I disagree with the outcome the majority reaches regarding Nurses Dibble and Shultz. While this issue is not dispositive, I believe the issue is important enough to warrant a separate writing.
The majority finds that the conduct of Dibble and Shultz, two discharged nurses, should be considered in the analysis “of the extent and openness of the supervisors’ pro-union conduct.” Maj. Op. at 875. In NLRB v. Hydrotherm, Inc., 824 F.2d 332 (4th Cir.1987), the Fourth Circuit held that, where a supervisor is discharged, “the Board must consider whether the employees had a reasonable expectation of his reinstatement.” Id. at 335 (emphasis added) (citation omitted). The supervisor in that case had a pending unfair labor practice charge, but the company failed to present evidence that any of the employees knew of that charge or had any expectation to think the supervisor would be reinstated. Id.; see also NLRB v. Howard Johnson Motor Lodge, 705 F.2d 932, 935 (7th Cir.1983) (holding that where direct evidence was presented that supervisor told employees she would get her job back, em *880 ployees had reasonable expectation that she would be reinstated).
In this case, the employees did not have reason to believe that Dibble and Shultz would be reinstated. The majority opinion states that “[t]he record is silent of any direct evidence demonstrating that non-supervisory employees were aware of the pending charge or that Dibble and/or Shultz made any comments to employees regarding their charge and the possibility that they might return to Willow Ridge.” Maj. Op. at 876 (emphasis added). Nevertheless, the opinion holds that “it is reasonable to infer that the employees were aware of the pending charge and that the employees could believe that Dibble and Shultz might return to work.” Id. (emphasis added). I believe this standard is extremely broad and haphazardly extends the “reasonable belief’ standard enunciated by the Fourth and Seventh Circuits.
The opinion points out that Dibble and Shultz held several pro-union meetings, yet the company failed to produce the statement of a single employee that demonstrates Dibble or Shultz indicated that they would return to work. The majority opinion points to significant statements the employees made regarding other supervisors. Maj. Op. at 876-877. Therefore, it seems that if the employees thought Shultz or Dibble was going to return to work, the company could have obtained a statement by an employee indicating as much. The evidence before this court does not indicate that the employees “reasonably believed” that Dibble and Shultz would be reinstated. Consequently, their conduct should not have been considered in the majority’s analysis.
The supervisors who remained employed, however, campaigned actively for the union. Therefore, I agree with the outcome reached by the majority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6944317. Public record. Not legal advice.