       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2     Ahearn v. Jackson Hospital Corp.             No. 02-5371
   ELECTRONIC CITATION: 2003 FED App. 0428P (6th Cir.)
               File Name: 03a0428p.06                                        _________________
                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                         ARGUED: Robert D. Hudson, GREENEBAUM, DOLL &
             FOR THE SIXTH CIRCUIT                       McDONALD, Covington, Kentucky, for Appellant. Aaron
               _________________                         N. Karsh, NATIONAL LABOR RELATIONS BOARD,
                                                         APPELLATE COURT BRANCH, Washington, D.C., for
RICHARD L. AHEARN ,            X                         Appellee. ON BRIEF: Robert D. Hudson, Luann Devine,
Regional Director of the        -                        GREENEBAUM, DOLL & McDONALD, Covington,
                                -                        Kentucky, for Appellant. Aaron N. Karsh, Judith I. Katz,
Ninth Region of the National                             Seema Nanda, NATIONAL LABOR RELATIONS BOARD,
                                -     No. 02-5371
Labor Relations Board, for      -                        Washington, D.C., for Appellee.
and on behalf of the             >
                                ,                                            _________________
NATIONAL LABOR RELATIONS -
BOARD ,                         -                                                OPINION
          Petitioner-Appellee, -                                             _________________
                                -
           v.                   -                          CLAY, Circuit Judge. Respondent Jackson Hospital
                                -                        Corporation, d/b/a Kentucky River Medical Center, Inc. (the
                                -                        “Hospital”), appeals from the judgment of the district court,
JACKSON HOSPITAL                -                        entered on January 22, 2002, which granted to Petitioner
CORPORATION , d/b/a             -                        Richard L. Ahearn (“Petitioner”), Regional Director of the
Kentucky River Medical          -                        Ninth Region of the National Labor Relations Board (the
Center, Inc.,                   -                        “Board”) and on behalf of the Board, a temporary injunction,
        Respondent-Appellant. -                          pursuant to § 10(j) of the National Labor Relations Act
                               N                         (“NLRA”), 29 U.S.C. § 160(j). The petition for injunction
                                                         arose from the Board’s administrative investigation into
     Appeal from the United States District Court        unfair labor practices allegedly committed by the Hospital
   for the Eastern District of Kentucky at Lexington.    against its employees, in violation of § 8(a)(1), (3), and (5) of
    No. 02-00009—Joseph M. Hood, District Judge.         the NLRA, 29 U.S.C. § 158(a). On appeal, the Hospital
                                                         principally argues that (1) the district court used an incorrect
             Argued: September 17, 2003                  legal standard in granting the injunction, and (2) the district
                                                         court’s decision amounted to clear error and an abuse of
        Decided and Filed: December 5, 2003              discretion.
Before: BOGGS, Chief Judge; KRUPANSKY and CLAY,            For the reasons that follow, we AFFIRM the district
                  Circuit Judges.                        court’s injunction order.

                           1
No. 02-5371          Ahearn v. Jackson Hospital Corp.         3    4     Ahearn v. Jackson Hospital Corp.             No. 02-5371

                     Procedural History                               On February 20, 2002, the Hospital moved for a partial stay
                                                                   pending appeal to this Court, which the district court denied
   On January 26, 2001, the Board filed a Petition for             on March 22, 2002. The Hospital filed a notice of appeal on
Injunction under § 10(j) of the NLRA, 29 U.S.C. § 160(j).          March 19, 2002. The Board filed a cross-appeal with respect
The petition alleged, in pertinent part, that there was            to the portions of the district court’s order that denied
reasonable cause to believe that the Hospital had undertaken       injunctive relief, but later withdrew the cross-appeal by
various actions that violated § 8(a)(1), (3), and (5) of the       stipulation of dismissal on June 24, 2002.
NLRA, 29 U.S.C. § 158(a). On February 16, 2001, the Board
filed an Amended Petition to the same effect, which included                                    Facts
additional claims for relief, specifically: (1) unlawful threats
of discharge, loss of jobs, and license revocation for engaging    A. The Union’s Formation and the Hospital’s Refusal to
in strike activity; (2) unlawful surveillance of employees            Negotiate
participating in a union strike; (3) unlawful discharge and
disciplining of employees in retaliation for their union             The Hospital operates a 55 bed acute care hospital in
activities; (4) post-strike implementation of break schedules      Jackson, Kentucky. On June 8, 1998, the Union Steelworkers
for unit employees without providing notice and opportunity        of America, AFL-CIO-CLC (the “Union”) was certified as the
for collective bargaining on the issue; and (5) refusal to meet    exclusive bargaining representative for the Hospital’s 170
and collectively bargain with the employees’ recently-             nurses and non-professional employees. The Union met with
established union. The Board requested injunctive relief,          the Hospital several times to negotiate a first contract, but was
specifically that the district court order the Hospital (pending   unsuccessful. A decertification election was held on
the NLRB’s ruling on the merits with respect to a                  December 10, 1999, but the Union filed unfair labor practice
simultaneous administrative proceeding before it) to reinstate     charges, and the Board impounded the ballots pending an
the discharged employees, to recognize and bargain with the        investigation. Following the resolution of these charges, the
union, and to cease and desist from committing the unfair          ballots were counted and the Union won the election. The
labor practices. The Hospital filed an answer, in which it         Union demanded bargaining in April of 2000, but the
denied that it had engaged in unfair labor practices and denied    Hospital refused to meet with the Union, claiming that the
that the Board was entitled to a temporary injunction.             Union had to provide a complete economic proposal before it
                                                                   would bargain.
   On January 18, 2002, the district court entered a 60 page
memorandum opinion and order granting the petition in part.        B. The Hospital’s Threats, Union Strike, and the
In relevant part, it ordered the reinstatement of three               Hospital’s Hostility Toward the Strikers
discharged Hospital employees, and it ordered the Hospital to
cease and desist from unlawfully threatening employees with           By the spring of 2000, the employees began to murmur
discharge, conducting surveillance of its employees while          about a possible strike to pressure the Hospital into
they are lawfully striking, and altering employees’ break          bargaining with the Union. Evidence was presented that in
schedules without providing notice and opportunity to engage       April 2000, the Hospital’s supervisors told the employees that
in collective bargaining. Judgment to this effect was entered      strikers might lose their jobs. Supervisor Ken Hicks told an
on January 22, 2002.                                               employee in April 2000 that, in the event of a strike,
                                                                   employees who were replaced “would not have a job” when
No. 02-5371          Ahearn v. Jackson Hospital Corp.        5    6        Ahearn v. Jackson Hospital Corp.        No. 02-5371

the strike ended. House supervisor Phyllis Gibbs told a group     C. The Hospital’s Post-Strike Adverse Actions
of employees in June that any employees who did not have a
contract and went on strike would be fired. Also in June              1.    Terminations of Laotta Sizemore, Clara Gabbard,
2000, nursing supervisor Allena Hale told three employees                   and Sandra Barker Hutton.
that she had been told that employees would be fired if they
went on strike without a contract. Dr. Edward Burnette, the         This appeal principally revolves around the terminations of
emergency room director, told at least four employees that if     three employees: Laotta Sizemore, Clara Gabbard, and
they went on strike they were “setting [themselves] up to be      Sandra Barker Hutton.
fired.” (J.A. at 763-66). On several other occasions, Dr.
Burnette told employees that if they insisted on participating       Laotta Sizemore was a registered nurse (RN) hired by the
in union activity and going on strike they would lose their       Hospital in 1992 as a weekend house supervisor. Sometime
jobs.                                                             after the union was originally certified in 1998, Sizemore’s
                                                                  position was eliminated and she became a nonsupervisory
  In mid-June 2000, the Union served the Hospital with a 10       night shift RN. Thereafter she became active in the Union,
day strike notice. Soon thereafter, supervisor Diana              wearing union buttons to work and speaking out in favor of
Blankenship told a group of five employees that “if this is not   the Union. During the strike, Sizemore accepted a full-time
ruled an unfair labor practice strike, some of you all will not   position as an emergency room nurse manager at another
be coming back,” and made a similar comment to another            hospital, but she wished to continue working at the Hospital
employee on another occasion. On July 7, 2000, employee           on a part-time, or “PRN,” basis. On August 15, 2000, the day
Anita Turner approached her supervisors, asking to alter her      the strike ended, Sizemore notified the Hospital of this
schedule so she could participate in the strike. Chief nursing    desired change by letter, stating, “Effective today, I would
officer Michelle Boyce-Obenchain became “very angry” and          like to change my status from full-time to PRN.” The
“loud” and told Turner that if she left the facility Obenchain    Hospital sent Sizemore a return-to-work letter, dated
would see to it that Turner lost her license, based on patient    August 17, 2000, instructing her to report to work at 5 p.m. on
abandonment. Obenchain had initiated such procedures in the       August 22, 2000. (J.A. at 735, 962.) Sizemore indeed
past.                                                             reported on August 22, 2000 only to discover that although
                                                                  her name appeared on the schedule, her shifts were crossed
  Nevertheless, the Union went on strike on July 8, 2000.         out. Sizemore queried Hale as to why her shifts were crossed
During the strike, the Hospital had picketers videotaped as       out, and Hale replied that she did not know. Sizemore left
they engaged in their strike activities. The Hospital also        messages for Obenchain and her supervisor, neither of whom
posted anti-union signs from a hospital window visible from       returned her calls.
where the employees picketed. On August 15, 2000, the
Union made an unconditional offer to return to work, which          On September 4, 2000, Sizemore agreed to cover someone
the Hospital accepted. The strikers returned to work on           else’s shift and completed the necessary paperwork. When
August 20, 2000.                                                  she called supervisor Jeri Howard to ensure that she was on
                                                                  the schedule, Howard replied that Sizemore was “not on the
                                                                  schedule any more.” (J.A. at 740.) As it turned out, after
                                                                  Sizemore submitted her change-of-status request, Obenchain
                                                                  recommended to the Hospital’s CEO David Bevins that
No. 02-5371          Ahearn v. Jackson Hospital Corp.       7    8    Ahearn v. Jackson Hospital Corp.           No. 02-5371

Sizemore not be retained as a PRN because she had failed to      recommended Gabbard’s discharge for failing to follow the
work a 15 day notice period before resigning, pursuant to the    Hospital’s “trade and cover” policy. (J.A. at 857-59.) The
Hospital’s resignation policy.       Thus, Sizemore was          policy requires employees to obtain their own coverage if
discharged. Her discharge papers indicate an effective date of   they do not notify supervisor Obenchain of such intended
August 21, 2000 and state that Sizemore resigned, failed to      absences by 7:00 a.m. of the 15th of the month. Because
work her notice period, and was non-rehirable. Obenchain         Obenchain received Gabbard’s request for time off on August
nevertheless failed to contact Sizemore with any of this         20, 2000, the Hospital apparently reasoned, Gabbard was
information, nor did she even return the calls Sizemore had      responsible for finding her own coverage. The Hospital had
placed to her upon discovering her crossed-out schedules on      mailed a copy of the policy with correspondence, via certified
August 22, 2000. Obenchain also acknowledged that no             mail, directing Gabbard to follow the “trade and cover”
Hospital policy states that an employee has to resign or work    policy. However, Gabbard evidently did not receive the
a notice period before converting from full-time to PRN          certified mail. However, the “trade and cover” policy does
status, which is what Sizemore’s August 15, 2000 written         not mention discipline or discharge for failure to follow the
notice had clearly endeavored to do.                             policy. (J.A. at 882-84.)
  Clara Gabbard had been a part-time ward clerk with the            The Hospital has a separate “incidents of absence” policy,
Hospital since 1990. In April of 2000, Gabbard gave her          which provides that for each unexcused absence where an
supervisor, Robin McGlothen, written notice that she was         employee provides at least two hours notice, the employee
unavailable to work the weekends of August 27 and                receives an “incident of absence.” (J.A. at 1007). Two
September 2, 2000, due to her annual participation as            “incidents of absence” within a 90 day period results in a
chairperson of the Breathitt County Honey Festival.              verbal warning. It is undisputed that Gabbard provided well
Subsequently, Gabbard became involved in union activity,         over two hours notice of her intended absence. (Indeed,
informing Obenchain that in the event of a strike she would      Gabbard provided several months’ notice considering her first
not cross the picket line and supposedly received a “mean”       notification to her supervisor in April of 2000, although
and “hateful” look in response. (J.A. at 698-701.) Indeed,       admittedly not to Obenchain directly.) It also appears
Gabbard actively participated in the strike, including making    undisputed that Gabbard did not have any “incidents of
pro-strike tapes that were placed on a local radio station and   absence” on her record at the time of her August 27, 2000
published in the newspaper.                                      absence. Nevertheless, Obenchain did not consider an
                                                                 alternative penalty to discharge in Gabbard’s case. Moreover,
  After the strike, Gabbard again reminded the Hospital on       prior to the strike, another employee, Jeri Howard, had agreed
August 17 and 20, 2000, that she needed the following two        to cover another employee under the “trade and cover” policy,
weekends off to serve at the Honey Festival. The Hospital        but failed to show up, and received only a verbal warning.
nevertheless put her on the schedule, and Gabbard learned of     (J.A. at 864-68.) No explanation was provided by the
this from another employee on August 26, 2000. Gabbard           Hospital for this apparent differential treatment.
again gave notice, this time to supervisor Hale. Gabbard
indeed did not work the weekend of August 27, 2000, and the        Sandra Barker Hutton was a billing and admitting clerk for
Hospital found another employee to cover the shift.              the Hospital between March 1996 and March 1998, and a
However, on August 31, 2000, the Hospital notified Gabbard       PRN thereafter. Hutton also worked full-time during the day
by letter of her termination. Obenchain testified that she       for the commonwealth attorney’s office. Hutton also was
No. 02-5371          Ahearn v. Jackson Hospital Corp.         9    10     Ahearn v. Jackson Hospital Corp.          No. 02-5371

active with the Union, wearing buttons from 1998 through           “made no effort to attend any video session” and because the
July of 2000, and she picketed during the strike. Following        deadline for viewing had been August 27, 2000 (not
the strike, the Hospital informed Hutton by letter of her return   September 1, 2000, as Cooper later testified). (J.A. at 803,
to work as a PRN.                                                  964).
  In March of 2000, the Hospital’s owner, Community Health           2.    Other Adverse Actions
Systems (“CHS”) reached a $31 million settlement agreement
with the United States government regarding its various               Prior to the strike, the Hospital’s housekeeping and
violations of the False Claims Act (“FCA”), 31 U.S.C. § 3729       maintenance employees had been allowed to select their own
et seq. As part of this agreement, CHS’s hospitals were            break and lunch times. However, immediately following the
required to conduct claim fraud prevention training in the         strike, the Hospital implemented a schedule for breaks and
form of a one-hour video by September 9, 2000. Based on            lunches, which assigned a particular break and lunch time for
the September 9, 2000 deadline, the Hospital set an internal       each employee. The record also contains an assortment of
deadline of September 1, 2000 for the completion of training.      evidence pertaining to various other firings of employees who
The Hospital’s CFO Randy Cooper posted a schedule of               had participated in the strike, namely Lois Noble, Beverly
viewings to take place on August 14 to 27, 2000.                   Clemons, Sandra Baker, and Diane Taulbee. Additionally,
                                                                   the Hospital issued a verbal warning to phlebotomist Sally
   Hutton received a phone call from representatives from the      Dunn, who was a strong union supporter prior to the strike.
Hospital’s business office, who scheduled Hutton to watch          On her second day back to work following the strike, Dunn
the compliance video on August 30, 2000 at 3:00 p.m.               testified that she was approached by her supervisor, Diana
Hutton was never informed by anyone of the September 1             Blankenship, and accused of taking a 30 minute break, when
deadline or that anyone missing the deadline would be              in fact she had taken a 15 minute break. Dunn told
terminated. Hutton took time off from her full-time job to         Blankenship that she could verify it on the computer, but
attend the scheduled August 30, 2000 viewing, but was told         Blankenship allegedly replied, “It doesn’t matter, they said
that the training had been canceled due to a computer foul-up.     you did, so consider this a verbal warning.” Blankenship then
She was also told by her supervisor Denise Trusty that she         asked Dunn if she had taken a phlebotomy tray outside while
would be called to reschedule the training and that she had to     smoking, and Dunn admitted that she had. Blankenship
complete the training before returning to work. Again,             repeated that Dunn could consider this a verbal warning.
Hutton was not informed of any deadline to complete the
training.                                                            3.    The Chilling Effect on Employees

  A week later, after her supervisor still had not called her,       Evidence in the form of several affidavits was presented
Hutton called Trusty to ask about the training. Trusty told her    indicating that these actions by the Hospital had created a
that she did not have a date yet but told Hutton to call back      chilling effect on the employees’ Union support. Registered
the following Monday. Hutton called on the following               nurse Patricia Hollifield averred in an affidavit that she knew
Monday, September 11, 2000, and left a message but received        of several strikers, including Gabbard, who were fired after
no return phone call. The following day, she received a letter     the strike and that she was very careful thereafter to avoid
from CFO Randy Cooper informing her that she was being             openly supporting the Union; she also indicated that other
purged from the Hospital’s PRN listing because she had             employees wanted to “lay low” about Union support for fear
No. 02-5371           Ahearn v. Jackson Hospital Corp.        11    12   Ahearn v. Jackson Hospital Corp.           No. 02-5371

of retaliatory discharge. Registered nurse Anita Turner, who        resign before changing status, and that no one notified
had been threatened by Obenchain with license revocation,           Sizemore of any possible adverse consequences related to her
averred that she felt like a “nervous wreck” based on her           request. Regarding Gabbard’s discharge, the court found that
knowledge of several firings and Obenchain’s threats, and she       evidence existed in the record indicating that the Hospital’s
consequently accepted a job at another hospital. Registered         asserted reason for the termination was pretextual inasmuch
nurse Shirley White had also experienced a chilling effect          as a similarly-situated employee had received less harsh
after learning of several firings (including Gabbard’s),            treatment and the Hospital’s policies did not contemplate
causing her to believe that “the [H]ospital wants to fire all the   discharge for first-time unexcused absences. Regarding
strikers.” She averred that she had spoken to other employees       Hutton’s discharge, the court found reasonable cause for a
who felt the same way. Although she had worn a button and           § 8(a)(1) violation inasmuch as Hutton’s discharge closely
attended union meetings prior to the strike, she never wore a       followed her strike participation and because she was not
union button again after the strike, for fear of retaliation. She   notified of any adverse consequences for failure to complete
also indicated that she never saw other employees wearing           training by a certain date.
union buttons after the strike. Additionally, Janie Jenkins
testified that, although she had worn a union button regularly         The district court also found that granting a temporary
for six months preceding the strike, she only wore a union          injunction for interim reinstatement of the terminated
button for a week following the strike and stopped thereafter,      employees was “just and proper” because the threats of
as did virtually all of her colleagues. She added that because      getting fired, closely followed by actual firings, was
of the discharges, the threats, the resignations, and the           “inherently chilling to union support,” and because the four
Hospitals’ refusal to bargain, she “felt really discouraged and     affidavits suggested that the Hospital’s adverse actions were
felt like the union couldn’t really help us.” (J.A. at 113.) She    “actually having a chilling effect on union support.” (J.A. at
also averred that she was afraid of being fired for any small       90.) The district court therefore ordered the Hospital to
error, and that she had talked with several other employees         reinstate Sizemore, Gabbard, and Hutton, as well as the other
who felt the same way.                                              adversely-affected employees. The court also ordered the
                                                                    Hospital to cease and desist from unlawfully threatening its
D. The District Court’s Decision                                    employees with termination, engaging in surveillance of
                                                                    striking employees, and altering the employees’ break
  In a January 18, 2002 order, the district court found that the    schedule without notice and opportunity for union bargaining.
Board had established reasonable cause to believe that the
Hospital had committed § 8(a)(1) violations with respect to         E. The Administrative Law Judge’s Administrative
the firing of six employees (including the three firings at issue      Decision
in this appeal), as well as the Hospital’s repeated threats of
job loss or license revocation, intimidating anti-union signs         On February 20, 2002, the administrative law judge (ALJ)
during the strike, unlawful video surveillance of the strikers,     presiding over the administrative proceedings with respect to
and alteration of employees’ break schedules after the strike.      the Hospital’s actions, also found that the Hospital had
                                                                    unlawfully terminated Sizemore, Gabbard, and Hutton. The
   Regarding Sizemore’s discharge, the district court found         ALJ rejected the Hospital’s argument that Sizemore failed to
that Sizemore’s August 15, 2000 letter requesting a change in       follow the resignation and reinstatement policy, finding
status was not a resignation, that no policy required a nurse to    instead that Sizemore did not resign but only requested a
No. 02-5371           Ahearn v. Jackson Hospital Corp.        13    14   Ahearn v. Jackson Hospital Corp.             No. 02-5371

change of status. The ALJ was particularly persuaded by the            The Hospital devotes a large segment of its brief to
fact that Obenchain initially granted Sizemore’s request and        challenging the district court’s use of the “reasonable
placed her on the schedule but later crossed her off. The ALJ       cause/just and proper” standard, which this Court has
also found that Gabbard’s actions were not subject to               employed with respect to § 10(j) injunctions. Specifically,
termination under the Hospital’s policies inasmuch as she           the “reasonable cause/just and proper” standard requires that
gave more than two hours’ notice of her intended personal           a district court find that (1) there is “reasonable cause” to
absence and that similarly situated employees had received          believe that unfair labor practices have occurred, and that
better treatment. Finally, the ALJ found that Hutton’s              (2) injunctive relief with respect to such practices would be
termination was discriminatory, based on four factors: (1) the      “just and proper.” Schaub v. West Mich. Plumbing &
Hospital’s inconsistent testimony about the deadline for            Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001). The
watching the compliance video, (2) the Hospital’s failure to        Hospital argues that the more “traditional” framework for
inform Hutton that she would be terminated if she did not           reviewing petitions for injunctions is correct in this context
watch the video, (3) the Hospital’s false accusation that           and urges this Court to reverse on this basis. The traditional
Hutton made no attempt to watch the video, when in fact she         framework is the four-factor test employed by this Court in
had shown up as scheduled and made several follow-up phone          the context of other petitions for injunctions, and requires a
calls to no avail, (4) the Hospital’s false accusation that         district court to consider (1) whether the moving party has a
Hutton was difficult to reach, and (5) “significant evidence of     substantial or strong likelihood of success on the merits;
disparate treatment.” Indeed, the ALJ refused to credit any of      (2) whether the moving party would otherwise suffer
the Hospital’s representatives’ testimony on the matter             irreparable injury; (3) whether the issuance of a preliminary
inasmuch as it was “replete with falsehoods and with obvious        injunction would cause substantial harm to others; and
and unexplained inconsistencies.” (J.A. at 63.) The ALJ also        (4) whether a preliminary injunction would serve the public
found that the Hospital’s threats, video surveillance, and          interest. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.
intimidating signs activity constituted § 8(a)(1) violations,       2000). We disagree with the Hospital.
and that the unilateral break schedule changes violated
§ 8(a)(5) of the NLRA.                                              A. The “Reasonable Cause/Just and Proper” Inquiry is
                                                                       Supported by Longstanding Sixth Circuit Precedent
  Unlike the district court, however, the ALJ did not find the         that a Panel Cannot Overrule
discipline of Sally Dunn, who had been smoking a cigarette
while handling blood samples, violated § 8(a)(3). In light of          We note initially that this circuit has consistently used the
this ruling, Petitioner no longer argues in favor of the district   “reasonable cause/just and proper” standard. A contrary
court’s ruling on this point.                                       holding of this panel would contravene the rule that one panel
                                                                    cannot overrule another panel; thus the “reasonable cause/just
                               I.                                   and proper” standard may only be overruled by this Court
                                                                    sitting en banc or the Supreme Court. See United States v.
   The issue of whether a district court applied the correct        Moody, 206 F.3d 609, 615 (6th Cir. 2000) (citing Salmi v.
legal standard is a legal question, which this Court reviews        Secretary of Health & Human Servs., 774 F.2d 685, 689 (6th
de novo. United States v. Willis, 257 F.3d 636, 642 (6th Cir.       Cir. 1985)).
2001) (citing In re Sorah, 163 F.3d 397, 400 (6th Cir. 1998))
(internal citation omitted).
No. 02-5371          Ahearn v. Jackson Hospital Corp.        15    16       Ahearn v. Jackson Hospital Corp.                  No. 02-5371

  Although the Hospital claims that the U.S. Supreme Court         contain the “just and proper” language.1 The Hospital may
has ruled to the contrary on this issue, it only cites             realize that these cases are not on point, given that it asks the
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) for this         Court to “revisit the current 10(j) standard” and “abandon[]”
proposition. The Hospital fails to explain the many Sixth          it “in favor of a traditional balancing test.” (Hospital Br. at
Circuit cases that have been decided using the “just and           17) (emphasis added).
proper” standard in the twenty years since Weinberger. See,
e.g., Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26 (6th    B. The “Reasonable Cause/Just and Proper Standard”
Cir. 1988); Gottfried v. Sheet Metal Workers’ Int’l Ass’n,            Properly Takes into Account a Hospital’s Interests
Local Union No. 80, 927 F.2d 926 (6th Cir. 1991); Kobel v.
United Paperworkers Int’l., 965 F.2d 1403, 1409 n.3 (6th Cir.        The Hospital also suggests that the “reasonable cause/just
1992); Schaub, 250 F.3d at 669. If the current 10(j) standard      and proper” standard does not properly take into account the
were in clear contravention of Supreme Court precedent, it         special interests of a hospital in maintaining a safe
seems unlikely that this or any other circuit would have           environment and optimal patient care, and that this Court
continued to adhere to it for two decades without concern.         could alternatively carve out a special exception for hospitals.
                                                                   We disagree.
   The Hospital also asserts that our decision in EEOC v.
Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1981)                  The case law reflects that the “reasonable cause/just and
compels us to use the “traditional” standard. Anchor Hocking       proper” standard adequately protects the special interests of
held that Title VII’s provision authorizing the Equal              hospital employers in maintaining optimal patient care. For
Employment Opportunity Commission (“EEOC”) to request              instance, in Frye v. District 1199, 996 F.2d 141 (6th Cir.
temporary injunctive relief does not permit a district court to    1993) (per curiam), the district court granted an injunction
issue a preliminary injunction without the traditional showing     limiting the amount of picketing in which workers could
of irreparable injury. Id. at 1040-41. Anchor Hocking thus         engage around a nursing home. The union appealed, and the
rejected the EEOC’s suggested standard that, upon the filing       Sixth Circuit affirmed, holding that the injunction was
of a discrimination charge–a prima facie showing of a Title        appropriate. Among other things, it observed that “when
VII violation–and a district court’s determination that            Congress amended the NLRA in 1974 to cover health care
“prompt judicial action is necessary,” a preliminary injunction    institutions, ‘there was a recognized concern for the need to
must issue. Id. at 1040-41. However, Anchor Hocking dealt
with a different statute, specifically, § 706(f)(2) of Title VII
                                                                        1
of the Civil Rights Act of 1964 (as amended), 42 U.S.C.                  Title VII provid es, in releva nt part, tha t “[w]henever a charge is
§ 2000e-5(f)(2), and the Court undertook a careful statutory       filed with the Commission and the Commission concludes on the basis of
analysis before rejecting the EEOC’s argument that a showing       a preliminary investigation that pro mpt judicial action is necessary to
of irreparable injury is not necessary. And, contrary to the       carry out the purposes of this Act, the Commission . . . may bring an
                                                                   action for appropriate temporary or preliminary relief pending final
Hospital’s contentions, Title VII does not have the same           disposition of such charge.” 42 U.S.C. § 2000e-5(f)(2). Section 10(j) of
language as the NLRA: in particular Title VII does not             the NLRA, on the other hand, indicates that “[t]he Board shall have power
                                                                   . . . to petition any United States district court . . . for app ropriate
                                                                   temporary relief or restraining order. . . . [T]he court shall cause notice
                                                                   thereof to be served upon such person, and thereupon shall have
                                                                   jurisdiction to grant to the Board such temporary relief or restraining
                                                                   order as it deems just and proper.” 29 U.S.C. § 160(j) (emp hasis added).
No. 02-5371              Ahearn v. Jackson Hospital Corp.              17     18    Ahearn v. Jackson Hospital Corp.              No. 02-5371

avoid disruption of patient care whenever possible.’ . . .                    standard but also incorporating the traditional elements, such
Accordingly, a court may consider the special characteristics                 as irreparable injury, into the “just and proper” prong of the
of health care institutions when determining an appropriate                   analysis). However, other circuits have retained the standard.
remedy.” Id. at 145 (citations omitted).                                      See, e.g., Sharp v. WEBCO Indus., Inc., 265 F.3d 1085,
                                                                              1089-90 (10th Cir. 2001); Hoffman ex rel. N.L.R.B. v. Inn
  The most likely reason that the district court did not discuss              Credible Caterers, Ltd., 247 F.3d 360, 364-65 (2d Cir. 2001).
this “patient care” theory at length is because this case does                Therefore, we are not alone in retaining the “reasonable
not raise health or safety concerns. It is not as if employees                cause/just and proper standard.”
Sizemore, Gabbard, and Hutton were fired for engaging in
dangerous behavior that could negatively impact the welfare                                                  II.
of the Hospital’s patients. The Hospital makes much of the
district court’s decision with respect to Sally Dunn, who had                    We next decide whether the district court committed error
been disciplined for smoking while carrying a tray of blood                   when it granted an injunction for the Petitioners in this case.
samples, but this has essentially become a non-issue                          As we just stated, the “reasonable cause/just and proper” test
inasmuch as the ALJ ruled in favor of the Hospital with                       requires a district court to find that there is “reasonable cause”
respect to the discipline of this employee and the Board has                  to believe that the employer engaged in unfair labor practices,
decided not to pursue her claim on appeal. Because we                         and that the relief requested is “just and proper.” We review
believe that sufficient flexibility exists in the application of              the “reasonable cause” finding for clear error. Gottfried v.
the “reasonable cause/just and proper standard” to                            Frankel, 818 F.2d 485, 493 (6th Cir. 1987) (citing Kobell v.
differentiate hospitals from other types of employers to the                  Suburban Lines, Inc., 731 F.2d 1076, 1084 (3d Cir. 1984)).
extent necessary to protect a hospital’s special circumstances,               This Court reviews the “just and proper” determination for an
we reject the hospital’s rationale.2                                          abuse of discretion. Schaub, 250 F.3d at 970 (citing Kobell
                                                                              v. United Paperworkers Int’l Union, AFL-CIO, CLC, 965
  We pause to observe that a number of circuits have                          F.2d 1401, 1409-10 (6th Cir. 1992)).
overhauled the “reasonable cause/just and proper” standard,
instead adopting the “traditional” test. See, e.g., Pye v.                      A. “Reasonable Cause/Just and Proper”
Sullivan Bros. Printers, Inc., 38 F.3d 58, 64 n.7 (1st Cir.
1994); Miller v. California Pac. Med. Ctr., 19 F.3d 449,                        The prevailing standard district courts in the Sixth Circuit
456-59 (9th Cir. 1994) (en banc); Kinney v. Pioneer Press,                    employ when considering a § 10(j) petition is the “reasonable
881 F.2d 485, 489-91 (7th Cir. 1989); see also Sharp v.                       cause/just and proper” standard. Under this standard, the
Parents in Cmty. Action, Inc., 172 F.3d 1034, 1038 (8th Cir.                  district court must find that (1) there is “reasonable cause” to
1999) (retaining the “reasonable cause/just and proper”                       believe that the employer engaged in unfair labor practices,
                                                                              and (2) injunctive relief is “just and proper.” NLRB v. Ky.
                                                                              May Coal Co., 89 F.3d 1235, 1239-40 (6th Cir. 1996) (citing
    2
      At oral argument, counsel for the Ho spital argued that the current
                                                                              Fleischut, 859 F.2d at 29). A district court also must be
“reaso nable cause/just and proper” standard “handcuffs” district courts in   mindful that “[p]roceedings pursuant to § 10(j) are
deciding whether to grant an injunction beca use a district court is not      subordinate to the unfair labor practice proceedings to be
perm itted to consider o utside testimony under the stand ard. C ontrary to   heard before the Board.” Schaub, 250 F.3d at 969 (citing
the Hospital’s argument, we think the current stand ard has shown its         Fleischut, 859 F.2d at 28). Consequently, it is not the job of
flexibility in a variety of factual circumstances.
No. 02-5371           Ahearn v. Jackson Hospital Corp.        19    20    Ahearn v. Jackson Hospital Corp.              No. 02-5371

the district court, in considering a § 10(j) petition, “to          district court “need not resolve conflicting evidence between
adjudicate the merits of the unfair labor practice case.” Id.       the parties” or make credibility determinations. Id. (citations
(citing Fleischut, 859 F.2d at 28.)                                 omitted). “Rather, so long as facts exist which could support
                                                                    the Board's theory of liability, the district court's findings
  The alleged violations at issue pertain to§ 8(a)(1), (3), and     cannot be clearly erroneous.” Id. (citations omitted). Indeed,
(5) of the NLRA, 29 U.S.C. § 158(a), which provides as              fact-finding is inappropriate in the context of a district court’s
follows:                                                            consideration of a 10(j) petition. Ky. May Coal Co., 89 F.3d
                                                                    at 1239.
  It shall be an unfair labor practice for an employer--
                                                                      Additionally, a “district court may rely upon both direct and
  (1) to interfere with, restrain, or coerce employees in the       circumstantial evidence to determine the motive of the
  exercise of the rights guaranteed in section 157 of this          employer with respect to the challenged conduct.” Schaub,
  title;                                                            250 F.3d at 970 (citing NLRB v. Vemco, Inc., 989 F.2d 1468,
                                                                    1477 (6th Cir. 1993)). For instance, “‘the proximity in time
  ...                                                               between recent protected activity and measures taken against
                                                                    the employee engaged in the activity lend support to the
  (3) by discrimination in regard to hire or tenure of              inference of an unfair labor practice.’” Id. (quoting Jim
  employment or any term or condition of employment to              Causley Pontiac v. NLRB, 620 F.2d 122, 125 (6th Cir. 1980)).
  encourage or discourage membership in any labor                   We reiterate that review of the district court’s “reasonable
  organization . . .;                                               cause” determination comes under the clear error standard.
  ...                                                               Frankel, 818 F.2d at 493.

  (5) to refuse to bargain collectively with the                      The statute at issue is § 8(a)(3) of the NLRA, which
  representatives of his employees, subject to the                  prohibits an employer from, “discriminati[ng] in regard to
  provisions of section 159(a) of this title.                       hire or tenure or employment to . . . discourage membership
                                                                    in any labor organization . . . .” 29 U.S.C. § 158(a)(3). This
29 U.S.C. § 158(a).                                                 Court has held that an employer’s termination of an employee
                                                                    for engaging in union activity violates § 8(a)(3). See Birch
  1.    Reasonable Cause                                            Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175,
                                                                    1179 (6th Cir. 1985).
  Petitioner’s burden of showing “reasonable cause” is
“relatively insubstantial,” inasmuch as the proof requires only        The relevant question is whether the employer’s
that the Board’s legal theory underlying the allegations of         termination of Sizemore, Gabbard, and Hutton was motivated
unfair labor practices be “substantial and not frivolous” and       by anti-union animus. NLRB v. Cook Family Foods, Ltd., 47
that the facts of the case be consistent with the Board’s legal     F.3d 809, 816 (6th Cir. 1995). If Petitioner demonstrates that
theory. Schaub, 250 F.3d at 969 (quoting and citing                 the termination was motivated at least in part by anti-union
Fleischut, 859 F.2d at 28, 29). This Court reviews the legal        animus, the burden shifts to the Hospital to show that it would
theory de novo and the facts for clear error. Id. (citing Kobell,   have fired the employee anyway. NLRB v. Transp. Mgmt.
965 F.2d at 1407). In reviewing the supporting facts, a             Corp., 462 U.S. 393, 399-403 (1983).
No. 02-5371           Ahearn v. Jackson Hospital Corp.         21    22     Ahearn v. Jackson Hospital Corp.            No. 02-5371

   We believe there is more than sufficient evidence in this         Katz, 369 U.S. 736, 743 (1962); NLRB v. Sanitary Bar &
record to demonstrate that the Hospital professed a strong           Burlap Co., 406 F.2d 750, 752 (6th Cir. 1969) (citations
anti-union animus, given evidence of supervisors’ threats to         omitted). That was not done here and the district court
fire strikers, the Hospital’s generally hostile attitude toward      properly found reasonable cause to believe the Hospital
the Union, its refusal to engage in collective bargaining, and       violated the NLRA by unilaterally changing the employees’
its display of anti-union signs and use of surveillance during       break schedules after the strike. See 29 U.S.C. § 158(d).
the strike. Moreover, Gabbard was terminated shortly after
returning to work from the strike, and Sizemore and Hutton             2.    Just and Proper
were terminated before they were even able to return to work.
Finally, there is plenty of evidence tending to show the                However, finding reasonable cause is not sufficient–the
pretextual nature of the Hospital’s reasons for firing each of       remedy of a temporary injunction must also be just and
the three employees. With respect to Sizemore, the Hospital          proper. In other words, “[c]ourts must be mindful that 'the
claimed that Sizemore failed to follow the proper 15 day             relief to be granted is only that reasonably necessary to
resignation notice policy, yet it is clear from her August 15,       preserve the ultimate remedial power of the Board and is not
2000 letter that she had not resigned but rather had requested       to be a substitute for the exercise of that power.’” Schaub v.
a change in work status, which did not require 15 day notice.        Detroit Newspaper Agency, 154 F.3d 276, 279 (6th Cir. 1998)
With respect to Gabbard, the existing policies indicated that        (citing Gottfried v. Sheet Metal Workers’ Int’l Ass’n, Local
an unexcused personal absence generally was penalized by             Union No. 80, 927 F.2d 926, 928 (6th Cir. 1991)). Thus,
methods short of termination, and indeed a similarly-situated        “[t]he ‘just and proper’ inquiry . . . turns primarily on whether
person had not been terminated. Finally, the Hospital’s              a temporary injunction is necessary ‘to protect the Board’s
misrepresentations with respect to Hutton, by suggesting that        remedial powers under the [NLRA].’” Id. (citing Calatrello
she made no effort to attend the videotape viewing, along            v. Automobile Sprinkler Corp. of America, 55 F.3d 208, 214
with the Hospital’s failure to communicate appropriate               (6th Cir. 1995)).
deadlines and/or to warn Hutton that not viewing the
compliance videotape would result in termination, clearly               We hold that the district court did not abuse its discretion
demonstrated the lack of plausibility of its reasons for her         in finding interim reinstatement for the three employees to be
discharge. Moreover, the ALJ’s February 20, 2002 ruling              “just and proper.” As the district court noted, multiple
lends further support to the validity of the district court’s        terminations of striking employees directly following the end
decision on these issues. Thus, reasonable cause is abundant         of the union strike would have an inherently chilling effect on
with regard to these three terminations, and the district court      other employees. See Frankel, 818 F.2d at 495-96 (noting the
did not clearly err with respect to its fact-finding on the          appropriateness of an interim reinstatement in the NLRB
reasonable cause issue.                                              context because an alternative result “risk[s] a serious adverse
                                                                     impact on employee interest in unionization”) (quoting
  As to the Hospital’s changes to employees’ break schedule          Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1053 (2d Cir.
after the strike, we agree with the district court that the law is   1980)); see also Pascarell v. Vibra Screw, 904 F.2d 874, 880
well settled that an employer may not make changes to terms          (3d Cir. 1990) (noting that the employer’s discharge of the
or conditions of employment without first affording the              entire bargaining committee rendered the chilling effect on
employee’s bargaining representative notice and opportunity          other non-activist employees “patent”).
to negotiate regarding the proposed changes. See NLRB v.
No. 02-5371          Ahearn v. Jackson Hospital Corp.       23    24       Ahearn v. Jackson Hospital Corp.                     No. 02-5371

  The four affidavits presented to the district court indicated     The Hospital also complains that the affidavits did not
that the terminations indeed did have a chilling effect on        reference the affiants’ knowledge of Sizemore and Hutton’s
union activity, inasmuch as the employees stopped wearing         discharges; they only referenced Gabbard’s discharge. Thus,
union buttons, spoke in hushed tones about union activities,      the Hospital claims, no proof had been submitted that
and feared reprisal. Some affidavits spoke of the low morale      Sizemore and Hutton’s terminations actually created a
and overall sense that the Union could not assist them as         chilling effect on the other employees. However, this
reactions to the multiple firings closely following the strike.   argument ignores the fact that there were other reasons
                                                                  supporting a “just and proper” finding; for instance, the
  It is also noteworthy that these three terminations represent   district court determined that the terminations themselves
the culmination of several months of severe hostility on the      were inherently chilling inasmuch as the reasons provided
Hospital’s part toward union activity, the strike, and any        were pretextual. The Hospital fails to persuade us on this
collective bargaining efforts. These are also relevant factors.   argument.3
See Arlook In re NLRB v. S. Lichtenberg & Co., 952 F.2d
367, 373-74 (11th Cir. 1992) (noting that the history of             The Hospital also argues that the “just and proper” burden
management resistance to unionization, various unfair labor       cannot be established for Sizemore because granting an
practices, and numerous discharges also supported interim         injunction seeks to restore the status quo, and because
relief to prevent further damage). Indeed, in this case, the      Sizemore never actually held the PRN position before she was
Union was quite new and had not even signed its first             terminated, she could only be returned to her old position.
contract, “mak[ing] bargaining units highly susceptible to        We find this argument meritless based on our previous
management misconduct.” Id. at 373.                               discussion of the “just and proper” standard.
   The Hospital laundry list of various arguments against            We conclude, therefore, that the district court did not abuse
finding that the “just and proper” burden has been satisfied,     its discretion in finding that Petitioner met the burden to show
but none of these arguments are particularly strong. We           that interim relief was just and proper.
believe discussion of all of these arguments is unnecessary
given our prior discussion in this case. Nevertheless, we shall
briefly discuss some of the Hospital’s arguments.
   For instance, the Hospital complains that the district court
did not adequately consider the special circumstances                  3
                                                                        The Hospital also complains that the affidavits should never have
surrounding a health care facility’s interest in maintaining      been received in evidence anyway inasmuch as some of them contained
quality patient care. Yet in this case none of these three        hearsay. However, this argument is placed in a footnote and the brief
employees were fired for defects in patient care. They were       provides no legal supp ort for this argum ent. W e do not be lieve the
fired for failing to follow certain procedures completely         Hospital has properly p laced this issue into contention for purp oses o f this
                                                                  app eal. To the extent that the Hospital seeks to incorporate by reference
unrelated to patient care issues. The district court did not      its argum ents from the district court brief, this attempt fails.
engage in any lengthy discussion about patient care interests     See Northlan d Ins. Co. v. Stew art Title Gu ar. Co., 327 F.3d 448 , 452 (6th
because the facts in this case did not merit such discussion.     Cir. 2003) (“The incorporation by reference of arguments made at various
                                                                  stages of the proceeding in the district court does not comply with the
                                                                  Federal Rules of Appellate Procedure” and therefore such arguments are
                                                                  waived).
No. 02-5371       Ahearn v. Jackson Hospital Corp.   25

                         III.
  For the foregoing reasons, we AFFIRM the judgment of
the district court.
