14-4028-ag
NLRB v. Sprain Brook Manor Nursing Home, LLC


                                                     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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
18th day of November, two thousand and fifteen.

Present:
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges,
            CHRISTINA REISS,
                        District Judge.*
____________________________________________________

NATIONAL LABOR RELATIONS BOARD,

                                                           Petitioner,

                             v.                                                                    No. 14-4028-ag

SPRAIN BROOK MANOR NURSING HOME, LLC,

                        Respondent,
____________________________________________________

For Petitioner:                                                          USHA DHEENAN, Supervisory Attorney, National
                                                                         Labor Relations Board, Washington, D.C.

For Respondent:                                                          JEFFERY A. MEYER & DAVID A. TAUSTER Kaufman
                                                                         Dolowich & Voluck LLP, Woodbury, NY
                                                            
*
     Chief Judge Christina Reiss, of the United States District Court for the District of Vermont,
siting by designation.
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____________________________________________________

Petition for enforcement of an order of the National Labor Relations Board.

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for enforcement is GRANTED.

       Petitioner the National Labor Relations Board (“the Board”) petitions for enforcement of

its decision and order finding violations of the National Labor Relations Act (“the Act”) by

Respondent Sprain Brook Manor Nursing Home, LLC (“Sprain”) against its employees. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues before the court.

       For the most part, the parties do not question the Board’s application of the law; they

disagree only about the relative weight of various pieces of evidence that underlie the Board’s

conclusions. This court will affirm the conclusions of the Board if supported by substantial

evidence. 29 U.S.C. § 160(e); see also Abbey’s Transp. Servs., Inc. v. NLRB, 837 F.2d 575, 579

(2d Cir. 1988). “Where competing inferences exist, we defer to the conclusions of the Board.”

Abbey’s Transp., 837 F.2d at 582; see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951). Ultimately, the reviewing court must set aside the Board’s decision if, in viewing the

record as a whole, it is “left with the impression that no rational trier of fact could reach the

conclusion drawn by the Board.” NLRB v. G & T Terminal Packaging Co., 246 F.3d 103, 114

(2d Cir. 2001). There is no basis for doing so here.

       The Board found that various interactions between Sprain’s administrator, Michael

Reingold, and Sprain employees, namely Catherine Alonso and Karen Bartko, constituted

violations of Sections 8(a)(1) and 8(a)(3) of the Act. The Board also found that several policy

changes implemented by Sprain violated Section 8(a)(5) of the Act. We consider each set of


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findings in turn.

       An employer violates Section 8(a)(1) when it “interfere[s] with, restrain[s], or coerce[s],

employees in the exercise of the rights guaranteed in [S]ection [7].” 29 U.S.C. § 158(a)(1).

Section 7 of the Act guarantees employees the right to “form, join or assist labor organizations”

and engage in other activities related to collective bargaining. 29 U.S.C. § 157. Where an

employer acts against an employee who is engaged in protected Section 7 activity, the

employer’s actions violate Section 8(a)(1) if they would have “a reasonable tendency to coerce

or intimidate employees, regardless of whether they are actually coerced.” N.Y. Univ. Med. Ctr.

v. NLRB, 156 F.3d 405, 410 (2d Cir. 1998).

       An employer violates Section 8(a)(3) of the Act by disciplining or discharging an

employee for engaging in Section 7 union activity. See 29 U.S.C. § 158(a)(3); NLRB v. Transp.

Mgmt. Corp., 462 U.S. 393, 397-98 (1983), abrogated on other grounds by Dir., Office of

Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267 (1994). Such

actions also derivatively violate Section 8(a)(1) because antiunion-motivated discipline or

discharge necessarily discourages union membership or activities. See Office & Prof’l Emps.

Int’l Union v. NLRB, 981 F.2d 76, 81 n.4 (2d Cir. 1992). The test for a Section 8(a)(3) violation

involves a two-step burden-shifting framework, as articulated in Wright Line, 251 NLRB 1083

(1980). See Transp. Mgmt. Corp., 462 U.S. at 403 (approving Wright Line test); NLRB v. S.E.

Nichols, Inc., 862 F.2d 952, 957 (2d Cir. 1988) (applying Wright Line test). The Board’s

General Counsel first has the burden to show that the employer (1) had knowledge that

employees were engaged in protected union activity and (2) that the employer’s decision to

discipline or discharge those employees was motivated, at least in substantial part, by hostility

toward that union activity. See Abbey’s Transp., 837 F.2d at 579. Once the General Counsel



                                                3
makes that showing, the burden shifts to the employer to demonstrate, by a preponderance of the

evidence, that it would have taken the same action absent the protected union activity. See S.E.

Nichols, 862 F.2d at 957.

        The Board concluded that Sprain violated Section 8(a)(1) of the Act when Reingold

threatened Alonso in response to her asking to leave the room during her discharge meeting in

order to get union delegate Clarisse Nogueira. As a threshold matter, seeking to have a union

representative present for an important meeting with one’s supervisor, as Alonso did here, is

protected Section 7 activity. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 260 (1975). While

the exact nature of Reingold’s threats that Alonso would have “trouble” and would “get nothing”

were unclear on this record, it is objectively reasonable for Alonso to have believed that the

threatened consequences were serious and negative and thus sufficiently coercive to violate

Section 8(a)(1). See NLRB v. Brookwood Furniture, 701 F.2d 452, 460 (5th Cir. 1983) (in the

context of noticeable, ongoing antiunion animus, supervisor violated Section 8(a)(1) by saying to

employee that he was “afraid” employee would “get into trouble” because of employee’s union

support); Parkview Hospital, Inc., 343 NLRB 76, 81 (2004) (employer threatening employee

with “trouble” for union activity violated Section 8(a)(1)).

        Sprain Brook challenges this conclusion of the Board only by attacking Alonso’s

credibility.   We will not disturb the Administrative Law Judge’s (“ALJ”) credibility

determinations, however, unless they are “hopelessly incredible or the findings flatly contradict

either the law of nature or undisputed documentary testimony.” NLRB v. Thalbo Corp., 171 F.3d

102, 112 (2d Cir. 1999) (quotation marks omitted); see also NLRB v. Dinion Coil Co., 201 F.2d

484, 487 (2d Cir. 1952).       Although the ALJ acknowledged that Alonso’s testimony was

convoluted and contradictory at times, the ALJ ultimately found her to be candid and reliable and



                                                 4
credited most of her testimony. Alonso’s testimony was not only corroborated by Nogueira’s

testimony, it was not rebutted by Sprain because Reingold, who presumably could have

countered Alonso’s recitation of Reingold’s threats, did not testify.

       Substantial evidence also supports the Board’s conclusion that Reingold’s discharge of

Alonso violated Sections 8(a)(3) and 8(a)(1). Sprain knew of Alonso’s union activity because it

had been paying Alonso monthly backpay for having illegally fired her for her union affiliation

in 2005. Sprain admits, moreover, that Reingold sat in with Alonso at initial union-forming

negotiations within months prior to her discharge. Her union activity was not stale, as Sprain

contends. See Am. Thread Co. v. NLRB, 631 F.2d 316, 318, 322-23 (4th Cir. 1980) (discharge

unlawful even though last union activity was eight months before discharge). Given Nogueira’s

unrebutted testimony that Reingold told her and Alonso that employees did not deserve union

representation, there was substantial evidence that Sprain’s employment decision was motivated

by hostility to the union. Moreover, although Sprain argues that Alonso’s discharge was based

on poor job performance, it presented no evidence to show that Reingold relied upon, or even

knew about, Alonso’s past disciplinary write-ups, which were issued several years prior to the

events in question during Alonso’s first months of employment.          Alonso and Nogueira’s

testimony constituted substantial evidence of the violation.

       With respect to Bartko, Sprain does not contest that the Board’s General Counsel met his

initial Wright Line burden. Sprain’s attempts at showing an independent reason for taking action

against Bartko fall short. The door-slamming incident, which Sprain claims is the real reason

Bartko was discharged, was reasonably interpreted by the Board as pretextual. There is evidence

that the doors to the facility could not slam because of built-in bars, and Bartko was a 15-year

employee with no disciplinary record. In addition, Sprain contends that Barkto’s response to



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Reingold suspending her—telling him she would not hold the door for him and that he should go

home—and the fact that she showed up for work the next day after being told to go home, were

insubordinate. The cases that Sprain cites as precedent, however, involve significantly more

egregious behavior.     E.g., NLRB v. Starbucks Corp., 679 F.3d 70, 78-80 (2d Cir. 2012)

(employee’s use of profanities in front of customers may have resulted in loss of the Act’s

protection).    The record supports the Board’s finding that Sprain’s proffered reasons for

discharging Bartko were pretextual. See Vincent Indus. Plastic, Inc. v. NLRB, 209 F.3d 727, 736

(D.C. Cir. 2000).

       The Board’s conclusions that Sprain committed four violations of Section 8(a)(5) of the

Act by unilaterally rescinding or altering employee benefits also are supported by substantial

evidence.      Sections 8(a)(5) and 8(d) require employers to “bargain collectively with the

representatives of [its] employees” with respect to “wages, hours, and other terms and conditions

of employment.”       29 U.S.C. §§ 158(a)(5), 158(d).    An employer violates that section by

announcing and altering such conditions of employment without giving the union prior notice

and the opportunity to bargain over the change. Litton Fin. Printing Div. v. NLRB, 501 U.S. 190,

198 (1991); NLRB v. Katz, 369 U.S. 736, 743 (1962).

       Sprain does not dispute that the four rescinded benefits—free hot lunches, on-site check-

cashing during work hours, free on-site physicals and tuberculosis testing, and medical-expense

payouts—are mandatory subjects of bargaining. Sprain also does not contest that, for each

benefit, it issued to its employees a written notice warning them that the benefit would no longer

be available. Notwithstanding these notices to employees, Sprain never sent any of the notices to

the union. Sprain’s behavior thus denied the union any opportunity to bargain over these

changes, in violation of Section 8(a)(5). See NLRB v. WPIX, Inc., 906 F.2d 898, 901 (2d Cir.



                                                6
1990) (noting that ignoring the union and taking unilateral action “detracts from the legitimacy

of the collective bargaining process by impairing the union's ability to function effectively, and

by giving the impression to members that a union is powerless.” (quotation omitted)).

       With regard to check-cashing in particular, Sprain argues that it had no contractual

relationship with the third-party check-cashing company and no control over that company’s

decision to cease the service. This contention is irrelevant. Sprain does not dispute that it

previously allowed its employees to cash their checks during work hours or that this was a

benefit mandatorily subject to bargaining. By focusing exclusively on the fact that it did not

unilaterally cease this service, Sprain abandoned the argument that it had no obligation to notify

the union of a change to the service. The Board’s conclusion that Sprain’s failure to notify the

union of this change violated Section 8(a)(5) must stand.

        We have considered all of Sprain’s remaining arguments and find them to be without

merit. The petition for enforcement is GRANTED.


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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