United States Court of Appeals, District of Columbia Circuit
DHSC, LLC, doing business as Affinity Medical Center, Petitioner
National Labor Relations Board, Respondent National Nurses Organizing Committee, Intervenor
Submitted November 21, 2019
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
T. Carmody and Kaitlin A. Kaseta were on the briefs for
B. Robb, General Counsel, National Labor Relations Board,
David Habenstreit, Acting Deputy Associate General Counsel,
Elizabeth Heaney, Supervisory Attorney, and Barbara A.
Sheehy, Attorney, were on the brief for respondent.
J. Daro and Carol A. Igoe were on the brief for intervenor
National Nurses Organizing Committee in support of
Before: Garland, Chief Judge, Griffith, Circuit Judge, and
Williams, Senior Circuit Judge.
GARLAND, CHIEF JUDGE
LLC operated Affinity Medical Center, a hospital in
Massillon, Ohio. Seven years ago, Affinity's registered
nurses voted to unionize. The National Labor Relations Board
found that Affinity committed four unfair labor practices in
the following months by: (1) disciplining, firing, and
reporting to the state nursing board a pro-union nurse; (2)
excluding a union organizer from the hospital; (3)
threatening nurses who filled out union complaint forms; and
(4) refusing to bargain with the union. DHSC, LLC,
362 N.L.R.B. 654 (2015). Because the Board's
determinations with respect to the first three charges are
supported by substantial evidence, and because we are without
jurisdiction to review the only defense that Affinity raises
to the refusal-to-bargain charge, we deny Affinity's
petition for review and grant the Board's
cross-application for enforcement.
principal unfair labor practice charge arises out of
Affinity's adverse actions against a pro-union nurse soon
after the union election. The election, which the union won,
took place on August 29, 2012. That same day, Affinity began
an investigation that led to the firing of Ann Wayt, a
23-year veteran of Affinity with no prior disciplinary
record. See DHSC, 362 N.L.R.B. at 660 & n.8.
Affinity alleged that Wayt failed to conduct a head-to-toe
exam or round on a patient but recorded that she did so in
the patient's chart. The next week, Affinity gave Wayt a
written warning for an unrelated, alleged failure to correct
a discrepancy in a medication-storage system. On September
26, 2012, Affinity fired Wayt and reported her to the Ohio
Board of Nursing for the exam and recording incident.
union filed an unfair labor practice charge alleging that
Wayt's disciplinary warning, firing, and reporting were
retaliation for her union support. An Administrative Law
Judge (ALJ) and the National Labor Relations Board
agreed. Without deciding the validity of the
allegations against Wayt, the Board concluded that
Affinity's actions were retaliatory in light of
"strong circumstantial evidence[, ] . . . including the
timing of discipline, the inadequate and indifferent nature
of [Affinity's] investigation of Wayt's alleged
misconduct, disparate treatment, and the pretextual nature of
the allegations against her." DHSC, 362
N.L.R.B. at 654 n.4.
second unfair labor practice charge stems from a letter sent
by union organizer Michelle Mahon in Wayt's defense. That
letter gave Wayt's account of the exam and recording
incident, and included the patient's room number and
other details but not the patient's name. Affinity's
patient privacy officer, Patricia Kline, concluded that Mahon
violated the Health Insurance Portability and Accountability
Act (HIPAA) by copying union officials on the letter.
Thereafter, Affinity banned Mahon from hospital grounds. The
Board concluded that, even if Mahon had violated HIPAA, the
extent of her punishment was discriminatorily motivated.
DHSC, 362 N.L.R.B. at 654 n.4.
third unfair labor practice charge involves union-issued
complaint forms. The union encouraged nurses to use these
forms to "work collaboratively" and "speak up
together" about unsafe hospital practices. Hr'g Tr.
478 (J.A. 202). Hospital supervisor Susan Kress did not take
kindly to the forms. According to Kress herself, she stood in
her unit and said: "I feel like slapping these on your
forehead so you can walk around and look how stupid you look
with them." Id. at 684 (J.A. 257). According to
another nurse, Kress said: "[I]f you fill out one of
these forms, I'm going to smash it through your
forehead." Id. at 409 (J.A. 176). That nurse
also recounted other retaliation and threats Kress made to
nurses who filled out the forms. The union contended that
this, too, was an unfair labor practice, and the Board
fourth unfair labor practice charge is that Affinity refused
to bargain with the union, which the Board certified on
October 5, 2012. Affinity acknowledges that it refused to
bargain. Answer 4 (J.A. 30). It did so intentionally, in
order to challenge the union's certification in the
unfair labor practice proceeding. Affinity Br. 7; see
Oberthur Techs. of Am. Corp. v. NLRB, 865 F.3d 719, 723
(D.C. Cir. 2017). The ...