LISA Y. HENDERSON, Acting Regional Director of the Tenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board; NATIONAL LABOR RELATIONS BOARD, Plaintiffs - Appellants,
BLUEFIELD HOSPITAL CO., LLC, d/b/a Bluefield Regional Medical Center, Defendant - Appellee. LISA Y. HENDERSON, Acting Regional Director of the Tenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board; NATIONAL LABOR RELATIONS BOARD, Plaintiffs - Appellants,
GREENBRIER VMC, LLC, doing business as Greenbrier Valley Medical Center, Defendant - Appellee.
Argued: October 25, 2017
Appeals from the United States District Court for the
Southern District of West Virginia, at Bluefield and Beckley.
David A. Faber, Senior District Judge. (1:16-cv-06305;
Jeffrey William Burritt, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Appellants.
Kaitlin Ann Kaseta, CARMODY & CARMODY, LLP, Mount
Pleasant, South Carolina, for Appellees.
Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo,
Deputy General Counsel, Barry J. Kearney, Associate General
Counsel, Jayme L. Sophir, Deputy Associate General Counsel,
Elinor L. Merberg, Assistant General Counsel, Laura T.
Vazquez, Deputy Assistant General Counsel, Meghan Brooke
Phillips, Office of the General Counsel, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Appellants.
T. Carmody, CARMODY & CARMODY, LLP, Mount Pleasant, South
Carolina, for Appellees.
GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.
NIEMEYER, CIRCUIT JUDGE.
issue in this appeal is whether the district court abused its
discretion in declining to grant preliminary injunctive
relief under § 10(j) of the National Labor Relations Act
as requested to preserve the ability of the National Labor
Relations Board (“the Board”) to award relief
after the completion of the ongoing agency process
adjudicating unfair labor practice charges against two
hospitals. We conclude that the Board failed to demonstrate
sufficiently that the effectiveness of its remedial power was
in jeopardy in this case and therefore that the district
court did not abuse its discretion in denying the Board's
petitions for injunctive relief.
Regional Medical Center is an acute-care hospital located in
Bluefield, West Virginia, that employs 170 registered nurses.
Greenbrier Valley Medical Center likewise is an acute-care
hospital located in Ronceverte, West Virginia, that employs
120 registered nurses. These hospitals are affiliated with
Community Health Systems, Inc., which has a national network
of affiliated hospitals.
August 2012, the registered nurses at both hospitals voted to
be represented for purposes of collective bargaining by the
National Nurses Organization Committee (“the
Union”), and thereafter the Board certified the Union
as the exclusive bargaining representative for each
hospital's “full-time, regular part-time, and per
diem Registered Nurses.” Both hospitals challenged the
certifications and refused to bargain with the Union,
prompting the Union to file unfair labor practice charges
with the Board under § of the National Labor Relations
Act (“the NLRA”). In December 2014, the Board
issued a consolidated order directing the hospitals to
recognize and bargain with the Union.
began bargaining sessions with the Union in March 2015, and
sessions continued into November 2015. At a November session,
Bluefield presented the Union with a “package
proposal” that lacked a grievance-arbitration provision
and contained a broad management-rights clause that, among
other things, reserved the hospital's right to
unilaterally discharge, suspend, or discipline any registered
nurse. Michelle Mahon, the Union's bargaining
representative, rejected the package as “completely
unacceptable” and “demonstrative of bad faith
bargaining.” But, according to Mahon, she nonetheless
“made it clear” that the Union still wanted
“to bargain in good faith, ” and she proposed
several alternative provisions. The hospital's bargaining
representative, however, stated that Bluefield was
“standing with its proposal” and would not
respond to the Union's proposals because the Union had
not responded to its package proposal as a whole.
Negotiations thereafter broke down.
Greenbrier Valley began bargaining sessions with the Union in
February 2015, and sessions continued into October 2015, when
Greenbrier Valley presented a package proposal to the Union
that was essentially the same as the one presented by
Bluefield. And similarly, that proposal led to a breakdown in
addition, after Greenbrier Valley terminated a registered
nurse's employment during the summer of 2015 on the
ground that she had violated the hospital's attendance
policy, the Union requested to bargain over the nurse's
discharge and also requested that the hospital provide the
Union with the nurse's attendance records and the
attendance records for other nurses in her department.
Greenbrier Valley stated that it was willing to bargain with
the Union over the nurse's discharge and to provide the
requested information but only if the Union first provided
the hospital with “a suitable indemnification.”
Greenbrier Valley explained that, earlier in the year, an
Ohio jury had returned an $800, 000 verdict against Affinity
Medical Center, another Community Health Systems hospital, on
an employee's defamation claim, which, according to
Greenbrier Valley, arose “in material part . . . out of
Affinity's inclusion of a [Union] representative . . . in
an investigatory interview.” Nonetheless, the Union,
emphasizing that “defamation is an intentional
tort, ” rejected the request for an indemnification
agreement, calling it “absurd” and the
“latest assault on the fundamental . . . rights of
January 2016, the Union filed unfair labor practice charges
with the Board against both Bluefield and Greenbrier Valley
under § 8(a)(1) and (5) of the NLRA, alleging that both
hospitals had “unlawfully engag[ed] in surface
bargaining” and had therefore “failed and refused
to bargain collectively and in good faith with the
[Union].” In addition, the Union charged Greenbrier
Valley with bad-faith bargaining with respect to the
nurse's discharge. Based on these charges, the Board
issued an administrative complaint against the hospitals on
March 10, 2016, commencing a process of agency adjudication
that remains ongoing.
roughly six months after the Union filed its charges with the
Board, the Board filed petitions in the district court - one
against each hospital - under § 10(j) of the NLRA, 29
U.S.C. § 160(j), requesting preliminary injunctions
“pending the final disposition of [the] matters
involved herein pending before the Board” that would
direct the hospitals to bargain with the Union in good faith;
require the hospitals to post copies of the court's
preliminary injunction; and require the hospitals to read the
preliminary injunction orally to the employees. The Board
alleged that unless the injunctions issued, the registered
nurses would be deprived “of their fundamental right to
be represented for the purposes of collective
bargaining.” In addition, the Board sought a
preliminary injunction that would direct Greenbrier to
bargain in good faith over the former nurse's discharge
and to furnish the Union with the requested information.
support of the petitions, the Board filed affidavits from
Union employee Michelle Mahon and various nurses, including
Bluefield Nurse Brenda Meadwell and Greenbrier Valley Nurse
Michelle O'Bryan. According to Mahon and Nurse Meadwell,
the hospitals' negotiator frequently yelled or screamed
at the Union's bargaining-team members and once threw
papers toward Mahon. They also stated that some scheduled