08-3887-ag (L); 08-3888-ag (con)
National Labor Relations Board v. Bloomfield Health Care Center




                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule
32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal
Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must
serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 14th day of April, two thousand ten.

PRESENT:
            BARRINGTON D. PARKER,
            PETER W. HALL,
            GERARD E. LYNCH,
                        Circuit Judges.
______________________________________________

NATIONAL LABOR RELATIONS BOARD,
                         Petitioner,

                          v.                                                No. 08-3887-ag(L)
                                                                            No. 08-3888-ag(Con)

BLOOMFIELD HEALTH CARE CENTER,
                              Respondent.
______________________________________________

FOR PETITIONER:                           JULIE BROIDO, Supervisory Attorney, Labor Relations
                                          Board, Washington, D.C. (Ronald Meisburg, General
                                          Counsel, John E. Higgins, Jr., Deputy General Counsel,
                                          John H. Ferguson, Associate General Counsel, Linda
                                          Dreeben, Deputy Associate General Counsel, Christopher
                                          W. Young, Attorney, on the brief).

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FOR RESPONDENT:                       JEFFREY R. BABBIN, GREGORY A. BROWN, Wiggin
                                      & Dana LLP, New Haven, CT.

       Appeal from the National Labor Relations Board. UPON DUE CONSIDERATION, it

is hereby ORDERED, ADJUDGED, AND DECREED, that the National Labor Relations

Board’s petitions for enforcement are GRANTED.

       Petitioner National Labor Relations Board (the “Board” or “NLRB”) seeks to enforce two

orders against Respondent Bloomfield Health Care Center (“Bloomfield”). In the first order,

dated March 20, 2008 and reported at 352 NLRB 252 (2008), the NLRB found that Bloomfield

violated Sections 8(a)(1), (3) and (5) of the National Labor Relations Act (the “Act”) (29 U.S.C.

§§ 151, 158(a)(1), (3) and (5)), based on Bloomfield’s conduct before, during, and after an

NLRB-conducted organizing election. In the second order, issued on June 27, 2008 and reported

at 352 NLRB No. 94 (2008), the NLRB found that Bloomfield violated Sections 8(a)(1) and (5)

of the Act by refusing to bargain with the New England Health Care Employees Union, District

1199, SEIU, AFL-CIO (the “Union”). We assume the parties’ familiarity with the facts,

procedural context, and specification of appellate issues.

       1.      Jurisdiction & Standard of Review

       This Court has jurisdiction “to make and enter a decree enforcing, modifying, and

enforcing as so modified, or setting aside in whole or in part the order of the Board.” 29 U.S.C. §

160(f); see also KBI Sec. Serv., Inc. v. NLRB, 91 F.3d 291, 295 (2d Cir. 1996).

        The Board’s findings of fact are conclusive if “supported by substantial evidence on the

record considered as a whole.” 29 U.S.C. § 160(e). “We may not ‘displace the Board’s choice



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between two fairly conflicting views, even though we would justifiably have made a different

choice had the matter been before us de novo.’” NLRB v. G & T Terminal Packaging Co., 246

F.3d 103, 114 (2d Cir. 2001) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951) (alterations omitted)). We should reverse a factual finding “only . . . if, after looking at

the record as a whole, we are left with the impression that no rational trier of fact could reach the

conclusion drawn by the Board.” NLRB v. Katz’s Delicatessen of Houston St., Inc., 80 F.3d 755,

763 (2d Cir. 1996) (internal quotation marks omitted). We should uphold the Board’s legal

determinations “if not arbitrary and capricious.” Cibao Meat Prods., Inc. v. NLRB, 547 F.3d 336,

339 (2d Cir. 2008) (internal quotation marks omitted).

       2.         Discussion

       As an initial matter, the March 2008 NLRB decision found that Bloomfield committed an

unfair labor practice by “interrogating” certain employees about a union meeting that occurred in

July 2006. In its brief to this Court, Bloomfield states that it “is not addressing that aspect of the

Decision in this brief.” Because Bloomfield has not challenged this portion of the Board’s

decision, Petitioner is entitled to summary affirmance and enforcement of the portion of the

decision pertaining to the interrogation. See NLRB v. Springfield Hosp., 899 F.2d 1305, 1308 n.1

(2d Cir. 1990).

       Bloomfield next challenges the Board’s decision to overrule its election objections and

certify the Union. Bloomfield, in seeking to overturn the election, bears a “heavy burden.” This

Court, in NLRB v. Arthur Sarnow Candy Co., Inc., 40 F.3d 552 (2d Cir. 1994), stated as follows:

       In reviewing representation elections, this Court has stated that
       “[t]he conduct of representation elections is the very archetype of a

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       purely administrative function, with no quasi about it, concerning
       which courts should not interfere save for the most glaring
       discrimination or abuse.” [citing cases]. Accordingly, “when
       reviewing a request to overturn a Board decision refusing to set
       aside an election, we are limited to the narrow question of whether
       the Board abused its discretion in certifying the election.”
       Rochester Joint Bd., Amalgamated Clothing & Textile Workers
       Union v. NLRB, 896 F.2d 24, 27 (2d Cir. 1990).

       The party objecting to an election bears the burden of presenting
       evidence demonstrating that the Board abused its discretion in
       certifying the election. See, e.g., NLRB v. Mattison Mach. Works,
       365 U.S. 123, 123-24 [] (1961) (per curiam); NLRB v. Black Bull
       Carting Inc., 29 F.3d 44, 46 (2d Cir. 1994) (per curiam) (“A party
       seeking to overturn an election on the ground of a procedural
       irregularity has a heavy burden.”)[citing cases]. Moreover, in
       reviewing an election certification, the Court is to view the
       NLRB’s factual findings as conclusive unless they are not
       supported by substantial evidence on the record considered as a
       whole. 29 U.S.C. § 160(e); Lipman Motors[, Inc. v. NLRB, 451
       F.2d 823], 827, n. 8 [(2d Cir. 1971)] (citations omitted).

Id. at 556. Moreover, the Black Bull Court held that: “The presence of [a procedural] irregularity

is not in itself sufficient to overturn an election. Nor is it sufficient for a party to show merely a

‘possibility’ that the election was unfair. Rather, the challenger must come forward with

evidence of actual prejudice resulting from the challenged circumstances.” Black Bull Carting

Inc., 29 F.3d at 46 (internal citations omitted).

       Bloomfield’s first election objection relates to behavior during the election by a Union

supporter named Winsome Kitson (“Ms. Kitson”). Although the parties disagree about the

characterization of Ms. Kitson’s behavior, at worst, Ms. Kitson shouted at and was verbally

hostile towards Penni Martin (“Ms. Martin”), the Administrator of Bloomfield. Neither the ALJ

nor the Board determined that this shouting rose to the level of interfering with employees’


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exercise of free choice or created a general atmosphere of fear and reprisal, and nothing in the

record compels a contrary conclusion. Accordingly, it does not make a difference whether Ms.

Kitson was a party to the Union or a third party. The NLRB’s findings are supported by

“substantial evidence on the record,” and Bloomfield cannot meet its “heavy burden” to have us

overturn the election.

       Bloomfield’s second election objection relates to a letter supporting the Union signed by

several Connecticut legislators. While Bloomfield asks us to overturn the election based on the

coercive effects of the letter, this Court notes that the letter was not written on the Connecticut

legislators’ official letterhead or on NLRB letterhead, contained no mention of the Board or

Medicaid funding (indeed, there is no mention that the signers even have authority over health

care funding), and contained no threats, explicit or otherwise, of potential consequences should

the Union lose the election. The letter, on its face, is not susceptible of Bloomfield’s

interpretation that employees would have felt coerced into voting for the Union. See, e.g.,

Greater Hartford Ass’n for Retarded Citizens, Case No. 34-RC-2157 (NLRB May 9, 2006)

(unreported) (objection overruled with respect to letter nearly identical to the one in the instant

case except that the Greater Hartford letter was arguably more objectionable in that it contained

a reference to funding); Chipman Union, Inc., 316 NLRB 107 (1995) (letter from

Congresswoman on official stationery found not to be official institutional endorsement by the

Federal Government of a vote for the union in a representation election); Columbia Tanning

Corp., 238 NLRB 899 (1978) (noting a concern that employees viewed a letter “as an official




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document from a person in Government with authority over labor matters” (emphasis added)).

Accordingly, Bloomfield again cannot meet its “heavy burden” to have us overturn the election.

       Bloomfield next objects to the Board’s finding that it committed unfair labor practices in

disciplining Ms. Kitson. Regarding the exclusion of Ms. Kitson from the premises—allegedly

for violating Bloomfield’s ad hoc rule against off-duty employees being on the premises—the

ALJ and the Board weighed the evidence and found that Ms. Martin’s decision to exclude Ms.

Kitson was related to Ms. Kitson’s pro-Union opinions and Ms. Martin’s unwillingness to allow

Ms. Kitson to speak to other employees gathered in the Bloomfield recreation room. This

decision was fact-specific and based on credibility determinations. As such, it falls squarely

within the discretion of the lower tribunals. This Court, after looking at the record as a whole,

does not conclude that no rational trier of fact could reach the conclusion drawn by the Board.

Katz’s Delicatessen, 80 F.3d at 763.

       Regarding the suspension of Ms. Kitson, Bloomfield’s objections similarly must fail as

the decision falls within the sound discretion of the ALJ and the Board. Wright Line, A Division

of Wright Line, Inc., 251 NLRB 1083, 1083-88 (1980)), enforced, 662 F.2d 899 (1st Cir. 1981).

Under the two-step Wright Line test, as clarified by the Supreme Court in Director, Office of

Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994), the

Board’s General Counsel must first present evidence that proves that protected conduct was a

motivating factor in the discharge. The NLRB met this prong because Ms. Kitson’s suspension

stemmed directly from her protected activity, to wit, having pro-Union opinions. It next fell to

Bloomfield to demonstrate by a preponderance of the evidence that it would have reached the


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same decision absent the protected conduct. This conclusion is supported by ample evidence in

the record and, therefore, must be affirmed. 29 U.S.C. § 160(e). The ALJ “clearly undert[ook] a

Wright Line analysis,” and the Board appropriately adopted the ALJ’s decision. In re Am.

Gardens Mgmt. Co., 338 NLRB 644, 645 (2002).

       Finally, the Board’s fact-specific determinations that Bloomfield violated Sections 8(a)(1)

& (5) of the Act by eliminating a unit job and changing employees’ work schedules without

notifying and bargaining with the Union must similarly stand. The Supreme Court, in Litton

Financial Printing Division v. NLRB, 501 U.S. 190 (1991), held that an employer commits an

unfair labor practice if, without bargaining to impasse, it effects a unilateral change of an existing

term or condition of employment. Id. at 198 (citing NLRB v. Katz, 369 U.S. 736 (1962)).

       Bloomfield argues that elimination of the unit job had a de minimis impact on its

employees. The Board’s fact-heavy determination to the contrary must be given due deference

and, in any event, is supported by several cases. See, e.g., Finch, Pruyn & Co., 349 NLRB 270,

277 (2007) (eliminating a unit position and reassigning that person’s duties necessitated

bargaining even if elimination was due to economic concerns); Flambeau Airmold Corp., 334

NLRB 165, 171-72 (2001) (employer violated Section 8(a)(5) by permanently unilaterally

assigning employee to machine operation); Rangaire Acquisition Corp., 309 NLRB 1043, 1043

(1993) (single denial of a fifteen minute break involves a material, substantial, and significant

change in unit employees’ terms and conditions of employment). Litton Financial dictates that

Bloomfield should have negotiated this change with the Union. See Litton Fin., 501 U.S. at 198.

With respect to the requirement that two employees begin working on weekends, ample


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precedent holds that an employer’s established past practice can become an implied term and

condition of employment. See, e.g., Finch, Pruyn & Co Inc., 349 NLRB at 277 n.31; In re

Post-Tribune Co., 337 NLRB 1279, 1280-81 (2002). The two employees whose schedules were

unilaterally changed had come to accept their schedules. Accordingly, the Board was well within

its discretion to find that Bloomfield was required to negotiate with the Union before altering

these employees’ work schedules. See Litton Fin., 501 U.S. at 198.

       3.      Conclusion

       For the foregoing reasons, the NLRB’s petitions for enforcement are GRANTED.



                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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