# National Labor Relations Board, Petitioner/cross-Respondent v. St. Francis Healthcare Centre, Respondent/cross-Petitioner

> Court of Appeals for the Sixth Circuit · May 19, 2000 · 212 F.3d 945

URL: https://www.frixlaw.com/law-library/cases/9493064

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent, v. ST. FRANCIS HEALTHCARE CENTRE, Respondent/Cross-Petitioner
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** May 19, 2000
- **Citations:** 212 F.3d 945; 164 L.R.R.M. (BNA) 2324; 2000 U.S. App. LEXIS 11036
- **Precedential status:** Published
- **Opinion:** Concurrence by Cole
- **Judges:** Cole, Ryan, Wilhoit
- **Cited by:** 26 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/9493064

## How later opinions describe it (automated extraction)

- observing that an employer's "own campaign literature distributed after August 6 obviated any threat to reduce or eliminate benefits before bargaining began"

## Opinion text

COLE, Circuit Judge,
concurring.
I respectfully write separately to address two points.
I.
First, although I agree with the majority’s conclusion that the Board’s decision to set aside the first election was supported by substantial evidence, I disagree with the majority’s rejection, in Part II.C., of the Board’s determination that St. Francis threatened to bargain “from scratch,” thereby violating Section 8(a)(1) of the Act.
I agree with the majority that the record contains evidence to support St. Francis’s position that its statements were intended to inform employees about the bargaining consequences of union representation. For example, the two memorandum issued by St. Francis present a relatively balanced and permissible presentation of the impact of unionization.
However, the record also contains evidence that St. Francis made impermissible threats regarding bargaining with the union.
It is well established that “bargaining from ground zero” or “bargaining from scratch” statements by employer representatives violate Section 8(a)(1) of the Act if, in context, they reasonably could be understood by employees as a threat of loss of existing benefits and leave employees with the impression that what they may ultimately receive depends upon what the union can induce the employer to restore.
Taylor-Dunn Mfg. Co., 252 N.L.R.B. 799 , 800, 1980 WL 12482 (1980). The ALJ heard testimony from employees at the open forum who testified that Storer stated, for example, that they would “have to start from zero and work up to regain the benefits” they had. These statements do not merely indicate that, as the majority states, the employees “would need to negotiate to achieve their current benefits once bargaining began,” but that St. Francis would begin from zero if the workers unionized. See NLRB v. Construction & Gen. Laborers’ Union, Local No. 534, 778 F.2d 284, 291 (6th Cir.1985) (noting that “the speaker’s intent must be inferred from the circumstances as they appear to the reasonable person,” and that “assertions that the employer will ‘bargain from scratch’ are unfair labor practices”). Second, the unsigned pro-management leaflet, *968 which stated that the company would begin bargaining at “0”, provides additional evidence supporting the Board’s conclusion that the company violated Section 8(a)(1) of the Act. Further, St. Francis’s oral and written statements were made in the context of a campaign in which other violations of the Act occurred, including the hallmark violation of threatened plant closure.
We may not reverse the Board’s reasonable inferences “even though [we] might justifiably have reached a different conclusion had the matter been before [us] de novo.” Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 313 (6th Cir.1987). In light of the above evidence presented to the ALJ, I believe that substantial evidence exists to support the Board’s determination. This evidence is such that “ ‘a reasonable mind might accept as adequate to support’ ” the Board’s conclusion. Contech Div., SPX Corp. v. NLRB, 164 F.3d 297, 305 (6th Cir.1998), cert. denied, — U.S. -, 120 S.Ct. 64 , 145 L.Ed.2d 56 (1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 , 59 S.Ct. 206 , 83 L.Ed. 126 (1938)).
Because we find independent violations of the Act, the majority’s determination of this issue does not require overturning the Board’s decision on the first election. Accordingly, I concur in the majority’s resolution of the challenge to the first election.
II.
I also write separately on our decision to remand to the Board for an evidentiary hearing on St. Francis’s objection to the Biddle letter.
Although St. Francis bears the burden in its quest to overturn the election, see NLRB v. Gormac Custom Mfg., Inc., 190 F.3d 742, 746 (6th Cir.1999), we must take the evidence presented by St. Francis in the light most favorable to the company, see NLRB v. Valley Bakery, Inc., 1 F.3d 769, 772 (9th Cir.1993); Prestolite Wire Div. v. NLRB, 592 F.2d 302, 306-307 (6th Cir.1979). Here, St. Francis makes a showing of “substantial and material factual issues” which, if proven, would warrant setting aside the election. See 29 C.F.R. 102.69(d) (stating that a “hearing shall be conducted with respect to those objections or challenges which the regional director concludes raise substantial and material factual issues”); NLRB v. Tennessee Packers, Frosty Morn Div., 379 F.2d 172, 177-78 (6th Cir.1967).
As stated by the majority, in addition to the timing of the statement, “this court has considered other factors, including whether the employer was aware of the communication and had an opportunity to respond, the extent of the misrepresentation, whether the source of the misrepresentation was identified, and whether there is evidence that employees actually were affected by the misrepresentation.” Mitchellace v. NLRB, 90 F.3d 1150 , 1155 (6th Cir.1996). We also note the closeness of the election. See Gormac Custom Mfg., 190 F.3d at 747 ; see also Valley Bakery, 1 F.3d at 773 (“The need for a hearing is particularly great when the election is close.”); NLRB v. Bristol Spring Mfg. Co., 579 F.2d 704, 707 (2d Cir.1978).
The majority finds that St. Francis raises material issues of fact on at least four of these five points. While I agree that St. Francis raises sufficient issues of material fact to support holding an evidentiary hearing, I do not believe that St. Francis has established its success on four of the factors articulated by Mitchellace. For example, although the majority states that St. Francis is favored on the question of timing, the timing of the letter and some of the other circumstances of this case are not unlike those in Dayton Hudson Department Store Co. v. NLRB, 79 F.3d 546 , 551 (6th Cir.1996), in which the court upheld the Board’s determination. In Dayton Hudson, a letter with substantial misrepresentations was mailed to employees three days before the election, the writers of the letter were known to be allied with the union, but, unlike here, the union won *969 by a significant margin. See id. at 548, 551. In this case, in addition, St. Francis became aware of the letter one or two days before the election, and although it did not respond, it may have had a sufficient opportunity to do so. See Mitchellace, 90 F.3d at 1156 (stating that the employer, who learned of a flyer distributed the day before the election, was able to effectively respond). As to the third factor, although the centrality of the issues in the alleged misrepresentation to the representation campaign may be considered, this factor primarily assesses the extent and “artfulness” of the alleged deception. Cf. Midland Nat’l Life Ins. Co., 263 N.L.R.B. 127 , 133 (1982) (prohibiting the use of forged documents); Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343, 348 (6th Cir.1984). The extent of the misrepresentation in this case is disputed; St. Francis alleges it was significant. Fourth, St. Francis raises a material issue of fact on the source of the letter and whether employees could determine the source. Fifth, whether employees were affected by the alleged misrepresentation is unclear; St. Francis has provided scant evidence that employees were affected by the letter. Finally, the election’s closeness militates toward holding an evidentiary hearing.
Mindful that no set of factors governs whether or not an evidentiary hearing is necessary, the material issues raised by St. Francis direct us to remand for an eviden-tiary hearing at which the Board can resolve these factual questions and determine the appropriate result. After this hearing, it is possible that the Board’s determination that the Biddle letter does not constitute a violation of the Act is correct. See, e.g., Dayton Hudson, 79 F.3d 546 (upholding the Board’s decision after an earlier remand for an evidentiary hearing in Dayton Hudson Department Store Co. v. NLRB, 987 F.2d 359 (6th Cir.1993)); Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d 302 (6th Cir.1989) (upholding, on second review, the same result after a remand and evidentiary hearing by the Board); Van Leer Containers, Inc. v. NLRB, 943 F.2d 786 (7th Cir.1991) (same); NLRB v. Monark Boat Co., 800 F.2d 191 (8th Cir.1986) (same); Bauer Welding & Metal Fabricators, Inc. v. NLRB, 758 F.2d 308 (8th Cir.1985) (same).
In sum, I respectfully concur in the court’s decision to uphold the first election and to remand the second election for an evidentiary hearing on St. Francis’s objection to the Biddle letter.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9493064. Public record. Not legal advice.