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DHSC, LLC v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

December 20, 2019

DHSC, LLC, doing business as Affinity Medical Center, Petitioner
National Labor Relations Board, Respondent National Nurses Organizing Committee, Intervenor

          Submitted November 21, 2019

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

          Bryan T. Carmody and Kaitlin A. Kaseta were on the briefs for petitioner.

          Peter 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.

          Nicole J. Daro and Carol A. Igoe were on the brief for intervenor National Nurses Organizing Committee in support of respondent.

          Before: Garland, Chief Judge, Griffith, Circuit Judge, and Williams, Senior Circuit Judge.



         DHSC, 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.[1]


         The 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.

         The 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.[2] 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.

         The 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.

         The 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 agreed.

         The 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 ...

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