October 21, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 90-2047
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
HOSPITAL SAN FRANCISCO, INC.,
Respondent.
ON MOTION TO WITHDRAW RECOGNITION OF UNION
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
William Wachter, Assistant General Counsel, and Dona A. Nutini,
Trial Attorney, on memorandum for petitioner.
Tristan Reyes-Gilestra and Fiddler, Gonzalez & Rodriguez on
memorandum for respondent.
Per Curiam. Respondent Hospital San Francisco, Inc.,
the operator of a hospital in Rio Piedras, Puerto Rico, seeks
permission to withdraw recognition from the Unidad Laboral de
Enfermeras(os) y Empleados de la Salud--the union
representing a unit of registered nurses at the hospital.
Based on the undisputed evidence, the motion is denied for
the following reasons.1
I.
A brief recounting of respondent's bargaining history
with the union is necessary to place the instant motion in
context. That history includes, among other proceedings, two
decisions by the National Labor Relations Board finding that
respondent had committed unfair labor practices, and a
decision by this court adjudicating it in contempt. The
background is as follows. Following respondent's acquisition
of the hospital in December 1987, the union sought
recognition by the new owner. Although the union had been
representing the nurses for some ten years up to that point,
respondent refused, claiming that it was not a successor
employer and that the nurses were probationary employees. On
December 13, 1988, an ALJ rejected these allegations and
ordered respondent to bargain with the union; the Board
adopted this order three months later. See 293 NLRB 171
1. Neither side has requested reference to a special master,
and we agree that disposition of the matter can be reached on
the basis of the papers presented.
("Hospital I"). Respondent recognized and commenced
bargaining with the union in the wake of the ALJ's decision.
Such rapprochement, however, was short-lived. In August
1989, respondent withdrew recognition from the union and
filed a decertification petition, claiming that the union
lacked majority support among the nurses. It subsequently
made unilateral changes in working conditions and declined to
furnish the union with requested information. The union
again filed charges, and an ALJ again found that respondent
had committed unfair labor practices. This decision, dated
December 30, 1991, was adopted by the Board in April 1992.
See 307 NLRB 84 ("Hospital II"). Mincing no words, the ALJ
found that respondent "never had an intention to reach an
agreement with the Union," and that its "withdrawal of
recognition and the filing of the RN petition were pretexts
and shams, the real purpose for which was the delaying of
collective bargaining and ultimately the ousting of the Union
from the Respondent's premises." 307 NLRB at 87. The ALJ
similarly concluded that respondent's questioning of the
union's majority status was "spurious." Id.. Respondent
never sought review of Hospital II in this court.2
In the meantime, prompted by this second round of
charges, the Board applied for summary enforcement of its
2. Respondent's decertification petition, meanwhile, was
dismissed by the Region because of the pendency of the unfair
labor practice charges.
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order in Hospital I. In February 1991, over respondent's
objection, this court enforced the Board's order on the
ground that there was "no reasonable expectation" that the
wrong would not be repeated. We subsequently noted, in an
order denying reconsideration, that the record contained
"sufficient intimations ... of continued recalcitrance by
respondent concerning its duty to bargain" so as to warrant
enforcement of the order.
In July 1992, the Board filed a petition for
adjudication in civil contempt, alleging that respondent had
violated the judgment by unilaterally implementing a change
in work schedule and by dealing directly with employees in
connection therewith. In a decision dated March 30, 1993, we
found respondent in contempt. While acknowledging that its
conduct there was "less than flagrant in nature," we
determined that a contempt adjudication was warranted in
light of the hospital's "history of intransigence toward the
union." The accompanying purgation order directed
respondent, inter alia, to recognize and bargain in good
faith with the union. It also provided:
The Hospital shall not be heard to contend that the
Union lacks the support of a majority of the
bargaining unit at any time within one year of the
date of this adjudication. Thereafter, the
Hospital shall not withdraw recognition from the
Union without the prior approval of this Court.
Fifteen months later, respondent filed the instant request
for approval to withdraw recognition--asserting once again
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that the union's majority support was subject to reasonable
question. In the alternative, based on the same allegation,
it asks that an election be ordered. The Board has submitted
a memorandum opposing both requests.
II.
The governing standards are not in dispute.3 In order
to overcome the rebuttable presumption of continuing majority
status, respondent must demonstrate "either (1) the union in
fact no longer enjoy[s] majority support, or (2) the employer
ha[s] a reasonable 'good faith' doubt, based on objective
considerations, of the union's majority support." NLRB v.
LaVerdiere's Enterprises, 933 F.2d 1045, 1051-52 (1st Cir.
1991); accord, e.g., NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 778 (1990); Bolton-Emerson, Inc. v. NLRB,
899 F.2d 104, 106 (1st Cir. 1990). An attempt to withdraw
recognition based on such a good faith doubt "must be both
reasonable and supported by sufficient objective criteria."
Destileria Serrales, Inc. v. NLRB, 882 F.2d 19, 21 (1st Cir.
1989) (emphasis in original); accord, e.g., Soule Glass &
Glazing Co. v. NLRB, 652 F.2d 1055, 1110 (1st Cir. 1991).
In support of its request, respondent cites a panoply of
factors that are said to demonstrate both employee
3. While the cited standards derive from cases involving
unfair labor practice proceedings, both parties agree that
they are equally applicable to the instant case
notwithstanding its different procedural posture.
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repudiation of the union and inactivity on the union's part.
These can be summarized as follows: (1) employee expressions
of discontent with the union; (2) the infrequency of, and
poor attendance at, union meetings; (3) the nurses' failure
to pay union dues; (4) the filing by an employee of a
decertification petition in March 1992; (5) a letter from the
union president decrying the lack of employee support; (6)
the union's failure to file grievances; (7) its alleged
failure to appoint a shop steward; (8) the absence of
employees on the union bargaining committee; (9) the union's
overall inactivity; and (10) the high turnover in employees
since 1987.
Before addressing these various factors, we take note of
three general considerations militating against allowance of
the instant motion. First, little of respondent's supporting
evidence is of recent vintage: of the five sworn statements
attached to the motion, three were prepared in 1989 and a
fourth in 1990.4 This is significant. See, e.g., Manna Pro
Partners, L.P. v. NLRB, 986 F.2d 1346, 1353 (10th Cir. 1993)
(employee sentiments voiced in 1984 "were too remote in time"
to support a reasonable doubt of majority status in 1990).
Second, the Board considered much of such evidence in
Hospital II in the course of conducting an inquiry identical
4. Indeed, the three 1989 affidavits were drafted in support
of respondent's August 1989 decertification petition.
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to that involved here--i.e., in finding that respondent's
1989 challenge to the union's majority status was unfounded.
This, too, is significant. Cf. NLRB v. Donna-Lee Sportswear
Co., 836 F.2d 31, 33-34 (1st Cir. 1987) (discussing
principles of issue preclusion). Finally, as noted,
respondent was engaged in unfair labor practices throughout
much of the relevant period. Indeed, the ALJ in Hospital II
specifically found that "union defection [was] easily traced
to the Respondent's commission of unfair practices." 307
NLRB at 87. An employer, of course, cannot assert a good-
faith doubt as to a union's majority support where unfair
labor practices have caused employee defections. See, e.g.,
Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 687 (1944).
Respondent thus comes close to having three strikes
against it before even stepping to the plate. The specific
factors it cites, moreover, do little to advance its cause.
Indeed, many require little discussion. The union
president's letter, for example, is irrelevant; it is
apparent from the context that he was there lamenting the
nurses' reluctance to testify in the agency hearings--a
reluctance that is explicable in light of the atmosphere of
"fear" described by the ALJ. See 307 NLRB at 87. The
reference to the union's failure to file grievances is
disingenuous; as the ALJ noted, respondent had taken the
position that it would not discuss grievances until a
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bargaining agreement was reached. Id. at 86 & nn. 8-9. The
allegation of general union inactivity is frivolous; it
suffices to note in this regard that respondent has twice
been brought up on charges by the union.
The alleged expressions of employee disaffection with
the union are worthy of little weight. They are all at least
five years old, they were deemed unpersuasive by the ALJ in
Hospital II, see id. at 86, and they fall well short of
reflecting the views of "at least 50 percent" of the nursing
workforce, LaVerdiere's Enterprises, 933 F.2d at 1053.5 In
turn, the alleged absence of a shop steward, the absence of
employees on the bargaining committee, and the infrequency of
(and alleged poor attendance at) union meetings were each
considered by the ALJ.6 Moreover, the union now explains
that a steward was in place for part of 1991 and 1992, that
it purposefully excluded employees from the bargaining
committee to prevent reprisals, and that it has communicated
5. The June 1994 affidavit of Rivera Quintero--the only
current affidavit provided--states generally that the nurses
"totally disregard" the union, but recounts no individual
expressions of anti-union sentiment. Indeed, the lack of
updated evidence in this regard is telling, inasmuch as
"[e]xpression of employee sentiment against a union is the
most persuasive evidence supporting an employer's good faith
doubt of the union's lack of majority status." NLRB v.
Albany Steel, Inc., 17 F.3d 564, 570 (2d Cir. 1994).
6. The Rivera Quintero affidavit refers to a more recent
meeting, the date of which is unspecified, which is alleged
to have gone entirely unattended. The lack of supporting
detail, however, leaves it unclear whether such a meeting was
even held.
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with its members through mailings and leaflets, rather than
through meetings at the hospital, for the same reason.
Respondent has offered no rebuttal of these explanations.
The remaining three factors are likewise of little
avail. The employee's decertification petition, we are told,
was dismissed by the Region because of the pendency of unfair
labor practice proceedings. In Asseo v. Centro Medico del
Turabo, 900 F.2d 445 (1st Cir. 1990), we held in similar
circumstances that such a petition "do[es] not constitute
sufficient objective evidence to deny recognition to the
certified bargaining agent." Id. at 453. Moreover, the
petition there had been signed by 35 of the 79 employees;
here, while the petition contained a checked-off box
indicating it was supported by 30% or more of the nurses, it
was only signed by a single employee.
Regarding the issue of union dues, respondent points out
that no nurse has executed an authorization to have dues
deducted from his or her paycheck. Yet this evidence
manifests no recent diminution in employee support for the
union. Compare, e.g., NLRB v. Albany Steel, Inc., 17 F.3d
564, 570 (2d Cir. 1994) ("where the union has sought
financial support from the members and received only one
reply which was resoundingly negative, it is not unreasonable
for an employer to question the union's majority status").
Indeed, respondent acknowledges that it "has never deducted
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Union dues from the graduate nurses," Vazquez Affid., Exh.
10A, 8 (emphasis added)--quite possibly for the reason that
an employer has no duty to do so in the absence of a
collective bargaining agreement. See, e.g., Robbins Door &
Sash Co., 260 NLRB 659 (1982).7
Finally, as to the issue of employee turnover,8
whatever weight this factor might ordinarily possess is
diminished where, as here, the employer has unlawfully
avoided its bargaining obligation during most of the relevant
period. See, e.g., Fall River Dyeing & Finishing Corp. v.
NLRB, 482 U.S. 27, 51 n.18 (1987); LaVerdiere's Enterprises,
933 F.2d at 1055 ("If delays are occasioned by an obstinate
employer, he may not benefit from his own wrong.") (quoting
Texas Petrochemicals Corp. v. NLRB, 923 F.2d 398, 404 (5th
Cir. 1991)).
III.
For these reasons, we perceive no basis for the
withdrawal of recognition from the union. We are likewise
unpersuaded that an election among unit employees is
warranted. The two cases on which respondent relies in this
7. The union, in any event, now explains that its practice
is to collect dues only after a bargaining agreement has been
signed. Respondent has offered no response to this
assertion.
8. Respondent states that, of the 76 nurses working at the
hospital in June 1994, only eight were so employed when it
acquired the hospital back in December 1987.
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regard are plainly distinguishable. In LaVerdiere's
Enterprises, for example, we noted that "there existed a
clear showing of substantial employee dissatisfaction [with
the union] unprovoked by the employer before the employer's
less-than-egregious misconduct." 933 F.2d at 1055 (emphasis
in original). On all three counts--i.e., the extent of
employee discontent; the lack of employer contribution
thereto; the degree of employer misconduct--the instant case
differs. Similarly, in Albany Steel, various factors were
involved of a kind, or to a degree, not present in the
instant case--e.g., the absence of anti-union animus on the
employer's part; the employees' repudiation of an explicit
union request for financial support; the union's recent
failure to file any grievances, after having regularly done
so in the past; and timely expressions of employee
disaffection. See 17 F.3d at 569-71.
IV.
Nearly seven years after gaining ownership of the
hospital, respondent has yet to reach a collective bargaining
agreement with its registered nursing staff. As has now been
explicated on several occasions, both by this court and by
the Board, this state of affairs is principally attributable
to respondent's intransigence. Rather than file baseless
motions premised on stale evidence and regurgitated issues,
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respondent would be better served, we suggest, by attending
to its bargaining obligations in a forthright fashion.
The motion requesting approval to withdraw recognition
of the union is denied.
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