Correctional Medical Services

CORRECTIONAL MEDICAL SERVICES 277 Correctional Medical Services, Inc. and Civil Service Employees Association, Local 1000, AFSCME. Case 3–CA–23855 December 9, 2010 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES1 On May 31, 2007, the National Labor Relations Board issued a Decision and Order in this proceeding. The Board found therein that Civil Service Employees Asso- ciation, Local 1000, AFSCME (the Union) conducted picketing at the Respondent’s health care facility on Sep- tember 12, 2002, without complying with the notice re- quirements of Section 8(g). Based on that noncompli- ance, the Board concluded that employees who partici- pated in the picketing were not protected by the Act, and that the Respondent therefore did not violate Section 8(a)(1) or (3) of the Act by allegedly threatening, inter- rogating, and discharging several employees because of their participation in the picketing.2 Subsequently, the Union petitioned the United States Court of Appeals for the Second Circuit for review of the Board’s Order dismissing the complaint. On June 19, 2009, the Second Circuit granted the petition for review, vacated the Board’s Decision and Order, and remanded this case to the Board “for further proceedings consistent with [the court’s] opinion.”3 On December 2, 2009, the Board notified the parties that it had decided to accept the court’s remand, and stated that all parties were per- mitted to submit statements of position concerning the issues raised by the remand. The General Counsel and the Union each filed a statement of position. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Having accepted the remand, we accept the court’s opinion as the law of the case. Consistent with that opin- ion, and for the reasons discussed below, we find that the 1 Member Pearce, who is recused, is a member of the panel but did not participate in this decision on the merits. Member Becker is also recused, and did not participate in the consideration of this case. In New Process Steel v. NLRB, 130 S.Ct. 2635 (2010), the Supreme Court left undisturbed the Board’s practice of deciding cases with a two-member quorum when one of the panel members has recused himself. Under the Court’s reading of the Act, “the group quorum provision [of Sec. 3(b)] still operates to allow any panel to issue a deci- sion by only two members if one member is disqualified.” New Pro- cess Steel, 130 S. Ct. at 2644. 2 349 NLRB 1198 (CMS I). Then-Chairman Battista and then- Member Schaumber formed the Board majority. Then-Member Lieb- man, dissenting, would have found that the Respondent violated the Act. 3 Civil Service Employees Assn. Local 1000 v. NLRB, 569 F.3d 88, 95 (2d Cir. 2009). Respondent violated Section 8(a)(1) by threatening to discipline employees Richard Jolly, Richard Kowalski, Darcy LaGoy, Chesley Schager, and Stephanie Spear; by interrogating Kowalski, LaGoy, and Spear; and by dis- charging all five of these employees because they en- gaged in protected picketing on September 12, 2002.4 Facts5 The Respondent operates a medical clinic at the Alba- ny County Correctional Facility in Albany, New York. On August 15, the Union requested that the Respondent recognize it as the collective-bargaining representative of all clinic employees except the resident physician, the supervisors, and the office clericals. The Respondent rejected the request. On September 12, the Union picketed peacefully in support of its demand for recognition. The Union gave no notice to the Respondent or the Federal Mediation and Conciliation Service before the picketing began.6 About 20 individuals, including the 5 clinic employees named above, participated in this activity, which lasted for about 40 minutes. The five employees were off-duty during the picketing. On September 13, the Respondent sent a letter to each of these employees. In relevant part, the letter stated: On Thursday, September 12, 2002, Civil Service Employees Association and Capital District Area Labor Federation conducted a picket at the Correc- tional Medical Services Health Care Unit site at Al- bany County Correctional Facility. You participated in that picketing. The Union did not provide any advance notice of the picket. The National Labor Relations Act (“Act”) re- quires a union to provide 10 days’ written notice of its intent to picket a health care site. Employees who participate in illegal picketing lose their protec- tion under the Act. Correctional Medical Services is filing a charge with the National Labor Relations Board (“NLRB”) concerning the Union’s illegal picket. When the NLRB has completed its investi- gation of that charge, we will advise you as to what, if any, action will be taken concerning your partici- pation in the picketing. CMS does not condone your conduct. 4 All subsequent dates are in 2002, unless otherwise noted. 5 The parties submitted a factual stipulation, which the Board relied on in CMS I, 349 NLRB at 1198–1199. The following statement of facts draws from the factual summary in CMS I and also directly from the parties’ stipulation. 6 Sec. 8(g) requires a labor organization to give at least 10 days’ ad- vance written notice to any health care institution and to the FMCS before engaging in any strike, picketing, or other concerted refusal to work at the institution. 356 NLRB No. 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 278 Pending the NLRB’s investigation of this matter, you are to continue working your normally sched- uled hours. CMS assures you that it will take no ac- tions other than as legally authorized by the NLRB. CMS respects each employee’s right to engage in conduct protected by the Act, but will not tolerate conduct in violation of the Act. A few days later, the Respondent filed an unfair labor practice charge against the Union. On September 26, the General Counsel issued a complaint in Case 3–CG–41 alleging that the Union, by its conduct on September 12, violated Section 8(g) of the Act.7 In the meantime, on September 25, the Respondent’s outside counsel for labor and employment matters, an admitted agent of the Respondent, individually ques- tioned employees Kowalski, LaGoy, and Spear about the picketing. The attorney asked them to confirm their par- ticipation, to identify who had solicited them to picket, and to name other employees who had participated. On September 30, the Respondent terminated the five employees for engaging in an “illegal picket.”8 The Un- ion filed an unfair labor practice charge, and the General Counsel issued a complaint alleging that the Respondent had violated Section 8(a)(1) by threatening employees on September 13 and interrogating employees on September 25, and Section 8(a)(1) and (3) by discharging the five employees. The Board’s Decision in CMS I The Board majority found, as threshold matters, that the discharged employees had engaged in “picketing” under the auspices of the Union, and that the Union therefore violated Section 8(g) because it had failed to provide the required advance notice. The Board then invoked the “basic principle” that an employee who par- ticipates in unlawful activity is engaged in conduct un- protected by Section 7 and can be lawfully discharged for doing so. Accordingly, in the Board’s view, the Re- spondent’s discharge of the five picketers did not violate the Act. As for the complaint’s 8(a)(1) allegations, the Board concluded that because the picketing that was the subject of the threats and interrogations was unprotected, “it was not unlawful for the Respondent to respond in that man- ner.” Thus, the Board dismissed the complaint in its en- tirety. 7 At some point after September 30, the Union entered into an in- formal settlement agreement resolving Case 3–CG–41. 8 About 1 month later, the Respondent reinstated all five, without backpay. The Second Circuit’s Opinion On review, the court determined that the “plain mean- ing of the statute”9 established a congressional intent to draw “a clear distinction” between employees who “par- ticipate in picketing conducted by [a] labor organization in violation of [Section 8(g)’s] notice requirements” and employees who engage in an 8(g)-unlawful strike be- cause “the statute specifies sanctions” only for the lat- ter.10 Based on this distinction, and recognizing that Section 7 generally protects employee picketing, the court concluded that employees who picket peacefully absent 8(g) notice have not “acted contrary to law in their individual capacity or forfeited the protections of [S]ection 7.”11 Having rejected the Board’s essential finding—that the employees’ September 12 picketing was unprotected—the court remanded the case to the Board without further addressing the complaint’s allega- tions. Discussion Because we have accepted the court’s remand as the law of the case, its opinion is binding on us.12 Accord- ingly, we will re-evaluate the complaint allegations on the premise that the employees’ September 12 picketing was protected by Section 7. A. The Discharges The discharge of an employee violates Section 8(a)(1) of the Act if the employee was engaged in activity which is “concerted” within the meaning of Section 7, the em- ployer knew of the concerted nature of the employee’s activity, the concerted activity was protected by the Act, and the discharge was motivated by the employee’s pro- tected, concerted activity.13 It is undisputed that the employees’ picketing on Sep- tember 12 was concerted activity, and that the Respond- ent was aware of its concerted nature. Further, as ex- plained above, it is the law of this case that the picketing was protected by the Act. Finally, the Respondent acknowledged that it discharged the employees for par- ticipating in the picketing. Therefore, the employees’ protected, concerted activity motivated the discharges, 9 569 F.3d at 92. 10 Id. at 93. 11 Id. at 94. 12 Chairman Liebman adheres to her dissenting view in CMS I. Member Hayes did not participate in the decision in CMS I and ex- presses no opinion concerning the views expressed there inasmuch as the court’s opinion now controls. 13 Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). CORRECTIONAL MEDICAL SERVICES 279 and no further analysis is required.14 We conclude that the Respondent’s discharge of the five employees for engaging in protected picketing on September 12 violat- ed Section 8(a)(1).15 B. The September 13 Letters and the September 25 Inquiry In its answer to the complaint, the Respondent admit- ted the General Counsel’s allegations that in its Septem- ber 13 letters it threatened to discipline employees be- cause of their picketing, and that on September 25 it in- terrogated employees concerning the picketing. The Re- spondent averred that its conduct in both instances was lawful because the picketing was not protected by the Act. It is now the law of the case, however, that the picketing was protected. We thus turn to whether the Respondent’s threats and interrogations unlawfully inter- fered with the employees’ protected activity. 1. Threats. “The basic test for an 8(a)(1) violation is whether the employer engaged in conduct, regardless of intent, which reasonably tends to interfere with the free exercise of employee rights under the Act.”16 The Board will evaluate the totality of circumstances to distinguish between employer statements that are unlawful threats and those that are privileged under Section 8(c).17 The September 13 letters stated that the Union’s pick- eting on September 12 was illegal, and that employees who engage in illegal picketing “lose their protection under the Act.” The letters warned the five employees that when the Regional Office finished its investigation of the Respondent’s unfair labor practice charge against the Union, the Respondent would determine what action to take regarding the employees’ participation in the picketing. Finally, although expressing respect for em- ployee rights, the letters declared that the Respondent “will not tolerate conduct in violation of the Act.” The overriding message here was that the Respondent had already decided that the picketing was illegal, and that the employees had engaged in unprotected conduct. The inference that a reasonable employee would draw is that discipline or discharge would follow in fairly short order. We conclude that the Respondent threatened the employees with unspecified discipline for engaging in 14 See, e.g., Chromalloy Gas Turbine Corp., 331 NLRB 858, 864 (2000), enfd. 262 F.3d 184 (2d Cir. 2001). 15 We find it unnecessary to consider the complaint allegation that the discharges also violated Sec. 8(a)(3). Our remedy below for the 8(a)(1) violation is not materially different from an appropriate remedy under Sec. 8(a)(3). 16 Webasto Sunroofs, Inc., 342 NLRB 1222, 1223 (2004) (citing American Freightways Co., 124 NLRB 146, 147 (1959)). 17 See, e.g., Mediplex of Danbury, 314 NLRB 470, 471 (1994). protected picketing, and accordingly violated Section 8(a)(1).18 2. Interrogations. On September 25, the Respond- ent’s labor attorney individually questioned employees Kowalski, LaGoy, and Spear about the picketing. He sought information concerning their participation, who solicited them to picket, and the identity of other em- ployees who participated. The Board evaluates all of the relevant circumstances in determining whether an interrogation is coercive of Section 7 rights.19 The factual background of the in- quiry, the nature of the information sought, and the iden- tity of the questioner are significant factors, among oth- ers, in the analysis.20 Here, the questioning occurred against the backdrop of the Respondent’s letters threaten- ing unspecified discipline because of the employees’ picketing, which they had received less than 2 weeks earlier. The individual inquiries concerned sensitive matters related to their protected activity, and that of their fellow employees. And the person posing the ques- tions was the Respondent’s lawyer for labor and em- ployment matters. In those circumstances, we find that the Respondent’s questioning of the employees was co- ercive.21 In its brief in CMS I, the Respondent contended that its attorney was lawfully inquiring about a matter of per- ceived employee misconduct: the September 12 picket- ing. The Respondent is correct that an employer has the right to engage in a “legitimate investigation of unpro- tected conduct.”22 However, it cannot successfully rely on this privilege if the conduct at issue turns out to be protected.23 This is so because the test for coercion un- der Section 8(a)(1) “does not turn on the employer’s mo- tive.”24 In other words, if the investigated conduct proves to be protected, the employer’s good-faith belief to the contrary is no defense. As stated, the September 12 picketing was protected conduct. 18 In its brief to the Board in CMS I, the Respondent argued that the letters were necessary to establish that it did not condone conduct it perceived to be illegal. Although the Respondent was within its rights to foreclose any question of condonation, this goal certainly could have been accomplished without expressing a threat of retaliation. 19 See, e.g., Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). 20 Id.; see, e.g., Stoody Co., 320 NLRB 18 (1995). 21 See, e.g., Sunrise Senior Living, Inc., 344 NLRB 1246, 1254–1255 (2005), enfd. mem. 183 Fed.Appx. 326 (4th Cir. 2006) (finding unlaw- ful interrogations where questioners included high-ranking officials, circumstances suggested possible discipline, and questions sought information concerning their own and coworkers’ protected activity). 22 Ogihara America Corp., 347 NLRB 110, 114 (2006). 23 See, e.g., General Electric Co., 253 NLRB 1189, 1190 fn. 4 (1981). 24 American Freightways, above, 124 NLRB at 147. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 280 Accordingly, on evaluation of the relevant circum- stances above, we find that the inquiries by the Respond- ent’s attorney were coercive interrogations in violation of Section 8(a)(1).25 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and its medical clinic in Albany, New York, is a health care institution within the meaning of Section 2(14) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by discharging employees Richard Jolly, Richard Kow- alski, Darcy LaGoy, Chesley Schager, and Stephanie Spear for engaging in peaceful picketing protected by the Act. 4. The Respondent violated Section 8(a)(1) by threat- ening to discipline the employees named above because of their protected picketing. 5. The Respondent violated Section 8(a)(1) by inter- rogating employees Kowalski, LaGoy, and Spear about their own and other employees’ protected picketing. 6. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent violated Section 8(a)(1) by discharging employees Jolly, Kowalski, LaGoy, Schager, and Spear because they engaged in peaceful, protected picketing, we shall order the Respondent to make them whole for any loss of earnings and other benefits suffered as a result of the unlawful action against them. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). The Respondent shall also be required to remove from its files any and all references to the unlawful discharges of 25 The stipulated facts do not suggest that on September 25 the Re- spondent’s attorney was preparing a defense to an unfair labor practice charge or for strike activity at the medical clinic. But even assuming he was, there is no evidence that the appropriate safeguards for his inquir- ies were established. See, e.g., Preterm, Inc., 240 NLRB 654, 656 (1979); Johnnie’s Poultry Co., 146 NLRB 770, 774–775 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965). Jolly, Kowalski, LaGoy, Schager, and Spear, and to noti- fy them in writing that this has been done and that the discharges will not be used against them in any way. ORDER The National Labor Relations Board orders that the Respondent, Correctional Medical Services, Inc., Alba- ny, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging employees for engaging in peaceful picketing or other protected, concerted activities. (b) Threatening to discipline employees for engaging in protected, concerted activities. (c) Interrogating employees about their own and other employees’ protected, concerted activities. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole employees Richard Jolly, Richard Kowalski, Darcy LaGoy, Chesley Schager, and Stepha- nie Spear for any loss of earnings and other benefits suf- fered as a result of the unlawful action against them, in the manner set forth in the remedy section of this deci- sion. (b) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharges and, within 3 days thereafter, notify employees Jolly, Kowalski, LaGoy, Schager, and Spear in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (d) Within 14 days after service by Region 3, post at its Albany, New York facility copies of the attached no- tice marked “Appendix.”26 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- 26 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” CORRECTIONAL MEDICAL SERVICES 281 tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means.27 Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since September 13, 2002. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. 27 In J. Picini Flooring, 356 NLRB 11 (2010), the Board recently decided that its remedial notices are to be distributed electronically in appropriate circumstances. For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require elec- tronic distribution of notices, but agrees to do so in this case, for institu- tional reasons. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge you for engaging in peaceful picketing or other protected, concerted activities. WE WILL NOT threaten to discipline you for engaging in protected, concerted activities. WE WILL NOT interrogate you about your own or other employees’ protected, concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above, which are guaranteed you by Section 7 of the Act. WE WILL make whole employees Richard Jolly, Rich- ard Kowalski, Darcy LaGoy, Chesley Schager, and Stephanie Spear for any loss of earnings and other bene- fits resulting from their discharges, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharges of employees Jolly, Kowalski, LaGoy, Schager, and Spear, and WE WILL, within 3 days thereaf- ter, notify them in writing that this has been done and that the discharges will not be used against them in any way. CORRECTIONAL MEDICAL SERVICES, INC.