Jackson Hospital Corporation v. NLRB

Filing

OPINION filed [1312600] (Pages: 14) for the Court by Judge Henderson [10-1271, 10-1303]

USCA Case #10-1271

Document #1312600

Filed: 06/10/2011

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2011

Decided June 10, 2011
No. 10-1271

JACKSON HOSPITAL CORPORATION,
DOING BUSINESS AS KENTUCKY RIVER MEDICAL CENTER,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

Consolidated with 10-1303

On Petition for Review and Cross-Application
for Enforcement of an Order of the National
Labor Relations Board

Kaitlin A. Kaseta argued the cause for the petitioner. Bryan
T. Carmody was on brief. Don T. Carmody entered an
appearance.
Kellie J. Isbell, Attorney, National Labor Relations Board,
argued the cause for the respondent. John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel and Julie B. Broido, Supervisory Attorney,
were on brief.

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Before: HENDERSON, BROWN and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner
Jackson Hospital Corporation (Hospital) seeks review of an
adverse decision of the National Labor Relations Board (NLRB
or Board). An administrative law judge (ALJ) found the
Hospital violated section 8(a)(3) and (1) of the National Labor
Relations Act (Act) when it placed registered nurse Frances
Lynn Combs on “investigatory suspension” because of her
protected union activities. Jackson Hosp. Corp., Cases 9-CA42249 et al. (NLRB July 29, 2008) (ALJ Dec.). The Board
affirmed the ALJ’s finding. Jackson Hosp. Corp., 355 N.L.R.B.
No. 129 (2010) (NLRB Dec.). We grant the Hospital’s petition
and set aside the Board’s decision insofar as it found the
Hospital violated the Act by suspending Combs because its
finding is not supported by substantial evidence in the record.1
I.
On June 8, 1998, the Board certified the United
Steelworkers of America (Union) as the collective-bargaining
representative of various Hospital2 employees including
registered nurses and medical lab technicians. From the start,
the Union and the Hospital have had a rocky relationship,3
1

The NLRB also alleged violations of three other Hospital
employees’ rights. See infra note 6. The Hospital’s actions regarding
those employees are not before us.
2

The Hospital owns and operates the Kentucky River Medical
Center, a 55-bed acute care facility and full service hospital in
Jackson, Kentucky, staffed by about 300 employees.
3

Their early history included an unsuccessful decertification
attempt, a month-long strike and numerous unfair l0000abor practice

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indeed, they have yet to produce a collective bargaining
agreement.
In January 2003, the Hospital hired Combs as a nurse in its
medical/surgical unit. Her direct supervisor was Unit Manager
Kathy Thacker, who reported to Chief Nursing Officer Debbie
Linkous. A few months after Combs was hired, she was
tentatively selected to be coordinator of the Hospital’s proposed
“swing bed” unit, for which unit she performed some
“preliminary work.”4 ALJ Dec. at 38 (NLRB Dec. at 27).
In early April 2006, Combs joined the Union’s bargaining
committee and attended two collective-bargaining sessions.
When Combs learned the Hospital refused to bargain thereafter
because of her participation—the Hospital considered her
coordinator position part of management—she wrote a letter to
Linkous declining the position as a permanent position. She
then continued to participate in bargaining sessions.
On December 12, 2006, the Hospital distributed a
document, which each nurse was required to sign, outlining new
policies to govern administering medications to patients. Under
the new policies, each nurse was to place a patient’s medication
in a plastic bag with the patient’s label affixed, take it to the
patient’s room, transfer it to a medication cup, administer it to
the patient and then dispose of the plastic bag in a shred
container. Believing the new policy “ ‘would be difficult to
implement,’ ” Combs met with Donald Rentfro, the Hospital’s
chief executive officer, and gave him a document setting out her
concerns about the policy. ALJ Dec. at 38 (NLRB Dec. at 27)
charges against the Hospital leading to a Board finding that the
Hospital violated section 8(a)(1), (3) and (5) of the Act.
4

A “swing bed” is a “dual-use” bed used to provide both acute
care and nursing care. Dist. Mem. Hosp. of Sw. N.C., Inc. v.
Thompson, 364 F.3d 513, 514 (4th Cir. 2004).

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(quoting Transcript of ALJ Hearing, Jackson Hosp. Corp., Cases
9-CA-42249 et al. (Hearing Tr.), at 119 (Apr. 8, 2008)
(Combs)). Rentfro referred the matter to Linkous later that day.
The next day, Combs signed the new policy, believing it “ ‘was
going to be revised’ in order to make it ‘easy to implement it.’ ”
ALJ Dec. at 38-39 (NLRB Dec. at 27) (quoting Hearing Tr. at
120, 122) (Apr. 8, 2008) (Combs)). She acknowledged,
however, that “when she signed the form there was no mention
of revisions on it.” Id. at 39 (NLRB Dec. at 27).
On January 10, 2007, Unit Manager Thacker observed
Combs taking medication to a patient in an unlabeled cup rather
than a labeled plastic bag, as the policy required. When Thacker
pointed out she had not followed the new policy, Combs
responded: “ ‘We don’t need to be fools. We need to use
common sense.’ ” Id. (NLRB Dec. at 27) (quoting Hearing Tr.
at 62-63 (Nov. 27, 2007) (Combs)). Combs also told Thacker
she intended to take the matter up with Linkous and five minutes
later, accompanied by another nurse, Debra Adams, she went to
Linkous’s office. Linkous told Combs that before she could do
anything, she needed to hear Thacker’s version and “review the
policy and procedure.” Hearing Tr. at 1045 (Apr. 7, 2008)
(Linkous). Linkous then promised to “ ‘get back with [Combs]
as soon as [she] could.’ ” ALJ Dec. at 39 (NLRB Dec. at 27)
(quoting Hearing Tr. at 1045 (Apr. 7, 2008) (Linkous))
(alterations added).
Linkous discussed Combs’s infraction with Thacker about
one week later and, according to Linkous’s testimony, they
decided to give Combs a “verbal warning.” ALJ Dec. at 39
(NLRB Dec. at 27). Accordingly, on January 18, 2001,
Linkous, Thacker and Human Resources Director Naomi
Mitchell met in Linkous’s office to deliver the warning. The
ALJ found that Linkous, Thacker and Mitchell conferred before
meeting with Combs and that Linkous told the others “ ‘if . . .
Combs refused to meet with [them], that [they] would have to

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place her on an indefinite suspension.’ ” ALJ Dec. at 39 (NLRB
Dec. at 27) (quoting Hearing Tr. 1129-30 (Apr. 7, 2008)
(Linkous)); see also id. (quoting Hearing Tr. 1604-05 (Apr. 8,
2008) (Mitchell)). Linkous then invited Combs to her office,
explaining that “she ‘had made a decision regarding the January
10th incident and that she wanted to talk to [Combs] about it.”
Id. at 40 (NLRB Dec. at 28) (quoting Hearing Tr. at 69. (Nov.
27, 2009) (Combs)). Combs again brought Adams along with
her. When the two arrived, however, Linkous told Adams she
could not stay and Adams immediately left. The ALJ found that
the testimony of each of the four remaining employees was
consistent in the “broad outlines” of what then followed. Id.
First, Combs asked Linkous whether she could have a
“union representative” present, specifically offering to telephone
Union Organizing Coordinator Randall Pidcock to attend. Id.
When Linkous rejected her request, Combs responded it was her
“ ‘understanding, having been part of the union[,] that
representation for anything to do with a disciplinary discussion
[she] had a right to representation for that and that [she] did not
understand why [Linkous] was telling [her] no.’ ” ALJ Dec. at
40-41 (NLRB Dec. at 28) (quoting Hearing Tr. at 73 (Nov. 27,
2007)) (Combs)) (first alteration in original). Linkous then
asked Combs if she was “ ‘refusing to go ahead with the
meeting’ ” and Combs “ ‘said yes.’ ” Id. at 41 (NLRB Dec. at
28) (quoting Hearing Tr. at 1589 (Apr. 8, 2008) (Mitchell)).
Linkous then told Combs she was being placed on
“investigatory suspension.”5 ALJ Dec. at 41 (NLRB Dec. at
28); see also Hearing Tr. at 74 (Nov. 27, 2007) (Combs)
(Linkous “then said ‘I’m sorry, Lynn, but I will have to suspend
5

According to Combs, before she was suspended, Linkous asked
her: “ ‘You are not letting me give you this?’ ” while pointing “to
some papers on the front of her desk.” Hearing Tr. at 73. In response,
Combs again asserted she thought she had a right to have a
representative present. Id. at 74.

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you indefinitely pending an investigation.’ ”). Combs asked if
she would be paid “if it turned out that she had been correct in
her belief regarding her right to representation.” ALJ Dec. at 41
(NLRB Dec. at 28). Mitchell said “the normal practice” was to
pay an employee if it was ultimately determined an employee
had done nothing wrong. Hearing Tr. at 1589 (Apr. 8, 2008)
(Mitchell). Combs testified that before she left the meeting, she
told the three other participants: “ ‘I have no personal issues
with you. You all have treated me fairly. I just believe this is a
matter of employee rights.’ ” ALJ Dec. at 41 (NLRB Dec. at
28) (quoting Hearing Tr. at 74 (Nov. 27, 2007) (Combs)).
Finally, Combs asked if Linkous wanted her to see that her
patients were covered by another nurse and then clock out and
Linkous said “[y]es.” ALJ Dec. at 41 (NLRB Dec. at 28);
Hearing Tr. at 74 (Nov. 27, 2007) (Combs).
The following day, Combs informed Pidcock of her
suspension and Pidcock wrote a letter to Rentfro, stating in
relevant part:
On Thursday, January 18, 2007 Kentucky River
Medical Center indefinitely suspended employee
Frances Lynn Combs when she was called in to a
disciplinary meeting and insisted on Union
representation. I hereby request you meet with Ms.
Combs and myself at your earliest convenience to
discuss same, preferably late today or early next week.
Letter from Randy Pidcock to Dominic Rentfro (Jan. 19, 2007)
(Joint Appendix (JA) at 165) (Pidcock Letter). Rentfro
responded by letter three days later, agreeing to accommodate
Pidcock’s request and promising to “defer making a final
decision . . . until after [Pidcock] ha[d] been afforded an
opportunity to meet as . . . requested, unless [Pidcock] advise[d]
[him] to the contrary.”” Letter from Dominic Rentfro to Randy
Pidcock (Jan. 22, 2007) (JA 166) (Rentfro Letter). He further
requested the meeting be deferred until the end of the

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investigation when he had “a full opportunity to gather the facts
underlying . . . Combs’ suspension, and consult with Counsel.”
Id. Enclosed with Rentfro’s response was a second letter, of the
same date, from Linkous to Combs to confirm the latter’s
placement on“unpaid investigatory suspension” after she
“expressly refused to meet with [Linkous] without being
accompanied by Debra Adams or . . . Randall Pidcock.” Letter
from Debbie Linkous to Frances Lynn Combs (Jan. 22, 2007)
(JA 167).
The Hospital and the Union subsequently agreed to discuss
Combs’s suspension immediately preceding a bargaining session
that had been scheduled February 9, 2007 but the session was
cancelled because of a medical emergency in the family of the
only remaining Union bargaining team member. ALJ Dec. at 41
(NLRB Dec. at 28); Hearing Tr. at 1495-96 (Apr. 8, 2008)
(Rentfro; id. at 1518-22 (Pidcock). The two sides again planned
to meet immediately before the next scheduled bargaining
session on February 16, 2007 but this too was cancelled because
of the same Union member’s family medical emergency.
Hearing Tr. at 1496 (Apr. 8, 2008) (Rentfro); id. at 1522-24
(Pidcock). The two sides never scheduled another meeting on
the suspension nor did they in fact meet thereafter either to
bargain or to discuss the suspension. Id. at 1496 (Rentfro); id.
at 1524-25 (Pidcock).
Meanwhile, the NLRB General Counsel had filed a
complaint against the Hospital on August 11, 2005, alleging a
single unfair labor practice involving another employee. Other
allegations were added culminating in the instant charge based
on Combs’s investigatory suspension, which was added on
January 19, 2007. The parties entered into an informal
settlement agreement on August 22, 2007, which the Regional
Director vacated in October 2007, when he issued an amended
consolidated complaint. Order & Am. Consolidated Compl.,
Jackson Hosp. Corp., Cases 9-CA-42249 et al., ¶¶ 6-8 (Oct. 4,

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2007). The complaint alleged inter alia that the Hospital
violated section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), by
suspending Combs based on her protected Union activity.6 Id.
¶¶ 5, 9. It also sought from the Hospital all records “necessary
to analyze the amount of backpay due.” Id. at 5.
The ALJ conducted a seven-day hearing beginning
November 27, 2007 and ending April 9, 2008. On July 29,
2008, he issued a decision finding the Hospital violated section
8(a)(3) and (1) when it suspended Combs “in an unlawfully
discriminatory manner,” “primarily motivated by animus against
her due to her protected activities.” ALJ Dec. at 2, 50 (NLRB
Dec. at 7, 33). In a decision dated August 27, 2010, a threemember panel of the Board affirmed the ALJ’s determination
that the suspension violated section 8(a)(3) and (1). NLRB Dec.
at 1.
The Hospital timely petitioned for review and the Board
timely filed a cross-application for enforcement.
II.
“We must uphold an order of the Board unless it rests upon
a finding not supported by ‘substantial evidence’ or the Board
failed to apply the proper legal standard or departed from
precedent without giving a reasoned justification therefor.” S &
F Mkt. St. Healthcare LLC v. NLRB, 570 F.3d 354, 358 (D.C.
Cir. 2009) (quoting 29 U.S.C. § 160(f)). As discussed infra, we

6

The amended consolidated complaint also alleged the Hospital
discharged three other employees because of protected activity. The
ALJ dismissed the charges as to two of them but found the Hospital
violated the Act by discharging the third, a finding the Board reversed.

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conclude the Board’s decision is not supported by substantial
evidence.7
The Board upheld the ALJ’s analysis under its decision in
Wright Line, 251 N.L.R.B. 1083 (1980), enforced, NLRB v.
Wright Line, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S.
989 (1982). Under the Wright Line test,
the general counsel must first show that the protected
activity was a motivating factor in the adverse
employment decision. If this prima facie showing is
made, the burden shifts to the employer to demonstrate
that it would have made the adverse decision even had
the employee not engaged in protected activity.
Int’l Union of Operating Eng’rs, Local 470 v. NLRB, 350 F.3d
105, 110 (D.C. Cir. 2003) (internal quotation marks omitted).
The Board affirmed the ALJ’s determination that the General
Counsel made a prima facie showing that Combs’s union
activity was a motivating factor of her suspension based on three
findings. First, the NLRB concluded, correctly, that Combs’s
union activity and the Hospital’s knowledge thereof were
undisputed. Linkous “admitted that she was aware of Combs’
active participation in contract negotiations and that Combs was

7

As a preliminary matter, the Hospital argues that the Board
lacked authority to issue its July 29, 2008 order directing the NLRB
Office of the Executive Secretary to transfer the case from the ALJ to
the Board because the Board at that time lacked a quorum and
therefore lacked statutory authority to transact business. See New
Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) (quorum of at
least three members required for Board to act). Even if the Board had
lacked authority to transfer the case at that time, it plainly had
authority under section 10 of the Act, 29 U.S.C. § 160, to decide the
case when it issued its final decision on August 27, 2010, by which
time its membership had reached a quorum. See NLRB Dec. at 1
(identifying three members on decision panel).

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‘strong in the Union’ at the time Linkous suspended her.”
NLRB Dec. at 4. Second, the Board “infer[red] animus from the
circumstances surrounding Combs’ indefinite suspension,”
namely, “the conduct of management before, during, and after
the meeting with Combs at which she was indefinitely
suspended.” Id. At this point, the Board went off track.
According to the Board, the Hospital displayed animus
before and during the meeting because the three management
representatives “set up Combs by provoking her into insisting
on a Weingarten right that she did not in fact have.” Id. In
NLRB v. J. Weingarten, Inc., 420 U.S. 251, 262 (1975), the
Supreme Court approved the Board’s “recognition that § 7
guarantees an employee’s right to the presence of a union
representative at an investigatory interview in which the risk of
discipline reasonably inheres.” Long ago, however, the Board
clarified the Weingarten right, excluding from its reach a
meeting such as the one here:
As long as the employer has reached a final, binding
decision to impose certain discipline on the employee
prior to the interview, based on facts and evidence
obtained prior to the interview, no Section 7 right to
union representation exists under Weingarten when the
employer meets with the employee simply to inform
him of, or impose, that previously determined
discipline.
Baton Rouge Water Works Co., 246 N.L.R.B. 995, 997 (1979);
accord Haw. Tribune-Herald, 356 N.L.R.B. No. 63, at 14
(2011). Combs had no Weingarten right to representation
because Linkous and Thatcher had already decided on the form
of discipline to impose—a verbal warning—and the sole
purpose of the meeting was to deliver the warning to her.
According to the ALJ’s provocation theory—accepted by
two of the Board panel’s three members—the three managers

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deliberately schemed to, and did, manipulate Combs into
invoking her non-existent Weingarten right in order to justify
suspending her.8 Apparently, the scheme involved anticipating
that Combs would bring a companion to the meeting and that
she—a long time Union member and supporter as well as a
member of the Union’s bargaining team but unaware of the
long-established contour of the Weingarten representation
right—would insist on her non-existent right to representation
to the point of refusing to participate in the meeting without it.
The Board’s theory is mere speculation without a jot of
evidentiary support in the record. Granted, the managers could
have foreseen Combs would likely attend the meeting
accompanied by another employee—as she did on January 10,
2007 and apparently on other occasions as well. See Hearing Tr.
at 1130 (Apr. 7, 2008) (Linkous) (“[N]ormally when she came
to my office, she did have someone with her.”). In addition, it
is undisputed that Linkous suspended her because she refused to
continue with the meeting unless she was afforded the nonexistent Weingarten right to have Union representation at the
meeting. There is no evidentiary link, however, to causally
connect the two facts. The record contains no evidence, for
example, that during the pre-meeting conference, the managers
discussed the Weingarten representational right or its limitation
or even (contrary to the Board’s assertion on appeal) “the
possibility that Combs might refuse to participate without union
representation.” NLRB Br. at 19 (citing Hearing Tr. at 1129-30
(Apr. 7, 2008) (Linkous)) (emphasis added); id. at 1604-05
(Apr. 8, 2008) (Mitchell). The pre-meeting conference appears
from the record to have been nothing other than an opportunity

8

Member Schaumber “f[ound] it unnecessary to rely upon the
theory that ‘management set up Combs by provoking her into insisting
on a Weingarten right she did not in fact have’ ” and “d[id] not agree
that . . . managers met to discuss what steps to take if Combs invoked
a Weingarten right.” NLRB Dec. at 4 n.10.

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for all three managers to prepare for the meeting with Combs,
ensuring they all knew what discipline was to be imposed and
what would happen if Combs refused to meet with them—a
precaution that proved prudent as events unwound. There is no
record evidence that the three were planning to bushwhack
Combs, as the ALJ surmised and the Board agreed. The record
reflects even Combs herself did not see it that way. See Hearing
Tr. at 74 (Nov. 27, 2007) (Combs) (“I have no personal issues
with you. You all have treated me fairly.”).9
Nor does the Board fare any better in its reliance on the
Hospital’s post-suspension conduct. The Board concluded that
the ALJ
reasonably found that the “contrast between the
intended length of investigatory suspensions under the
Hospital’s policies and the interminable length of
Combs’ suspension,” coupled with the “disparity
between Combs’ protracted suspension and the
treatment of other employees” placed on investigatory
suspension, supports a finding of animus directed
against Combs for her participation in protected union
activities.

9

The Board found it significant that “after Linkous told Combs
that she had no right to a representative,” Mitchell “maintained what
the judge described as a ‘strange and disturbing silence’ ”
notwithstanding “as the authoritative representative of the human
resources department, [she] could have explained Combs’ rights to
her, and possibly averted Combs’ walkout.” NLRB Dec. at 4 (quoting
ALJ Dec. at 46 (NLRB Dec. at 31)). Mitchell was under no
obligation, however, to explain to Combs why she had no Weingarten
right—especially given her limited role at the meeting convened by
chief nursing officer Linkous in order to discipline a member of her
nursing staff. As Mitchell observed, she “wasn’t the one doing the
meeting.” Hearing Tr. at 1597 (Apr. 6, 2008) (Mitchell).

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NLRB Dec. at 4 (quoting ALJ Dec. at 48 (NLRB Dec. at 32)).
In support, the Board asserted that “[t]he record shows that
prior investigative suspensions at the facility typically took
anywhere from 3 days to 2 weeks,” noting that “the
investigatory suspension of James Fields, another alleged
discriminatee in this case, led to a careful investigation to
determine the facts and consultation with medical experts, yet
lasted only 3 weeks.” Id. nn.11 & 12. The undisputed evidence,
however, manifests the reason for the cited “disparity”—and it
had nothing to do with the pace of the Hospital’s investigation
of Combs’s conduct. In his letter to Rentfro, Pidcock expressly
requested that he and Combs together meet with Rentfro
regarding Combs’s suspension. Pidcock Letter. In his letter,
Rentfro agreed to accommodate Pidcock’s request and to defer
a final decision on Combs until Pidcock was “afforded an
opportunity to meet as . . . requested,” unless Pidcock “advise[d]
[him] to the contrary.” Rentfro Letter. Subsequently, the parties
scheduled two successive meetings for this purpose—first on
February 9, 2007 and then on February 16, 2007—each of which
the Union cancelled. The Union makes no claim it subsequently
attempted to reschedule the meeting Pidcock had requested of
Rentfro nor does it explain why its failure to do so should be
overlooked. Under these circumstances, it makes no sense to
place blame on the Hospital, as the Board has done, for the lack
of communication between them. After it cancelled the
meetings, the Union itself sat idle as Combs’s potential backpay
piled up.
Having offered insubstantial evidence, if any, to establish
that Combs’s protected union activity was a motivating factor in
her suspension, the General Counsel failed to carry his burden
under the first prong of the Wright Line test so as to make out a
prima facie case and shift the burden of proof to the Hospital.
The Board, therefore, had no basis to conclude, as it did, that the
Hospital violated section 8(a)(3) and (1) of the Act.

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For the foregoing reasons, we grant the Hospital’s petition
for review and deny the Board’s cross-application for
enforcement.
So ordered.

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