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National Labor Relations Board v. American Geri-Care Inc.

decided: December 23, 1982.


Petition for enforcement of an order of the National Labor Relations Board citing an employer for violations of Sections 8(a)(1), (3) and (4) of the National Labor Relations Act for harassing and discharging an employee and for promising increased wages to induce anti-union votes. The Court finds substantial evidence to support the Board's findings and orders enforcement.

Friendly, Meskill and Cardamone, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

The petitioner, National Labor Relations Board (Board), has submitted an application pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1976) (NLRA), for enforcement of its September 30, 1980 order against the respondent, American Geri-Care, Inc. (the Company). Jurisdiction is properly conferred on this Court by Section 10(e) of the Act because the Board seeks enforcement of a final order in which the Company was found guilty of several unfair labor practices. We conclude that the Board's findings were supported by substantial evidence and therefore order that the decision of the NLRB be enforced under the terms outlined in the administrative decision.


American Geri-Care is a New York corporation principally engaged in the business of providing health care, staffing and related services to various medical institutions in the greater New York City area.*fn1 The Company derives substantial revenue by contracting to staff local nursing homes from its pool of registered nurses and related medical personnel. Under one such contract, the Company agreed to provide the Aischel Avraham Nursing Home in Brooklyn with thirteen registered nurses to service that institution during the 1979 fiscal year. The events giving rise to the Board's unfair labor practice findings each occurred at the Avraham facility.

The group of nurses assigned to the Avraham Home did not belong to a union when they commenced working at that institution. They were subsequently approached, however, by two rival unions who sought to enlist their support for unionization. On October 29, 1979, one of these unions, Local 144, Hotel, Hospital, Nursing Home and Allied Health Services Union, SEIU, AFL-CIO (Local 144), filed a representation petition on behalf of the unit of registered nurses employed by the Company at the Avraham facility. The rival union, Local 6, International Federation of Health Professionals, International Longshoreman's Association, AFL-CIO (Local 6), requested and was granted permission by the NLRB to participate in the union election. A closed ballot election was held on December 20, 1979, and Local 144 was narrowly defeated.*fn2

On December 28, 1979, Local 144 filed timely objections to conduct affecting the results of the election. Local 144 principally alleged that the Company had engaged in a broad range of unfair labor practices in an effort to defeat the union's election bid. The union requested that an administrative hearing be held to consider these charges and, for purposes of this appeal, two important rulings were made at that hearing. The Administrative Law Judge (ALJ) found that: (1) the Company had violated Sections 8(a)(1), (3) and (4) of the NLRA, 29 U.S.C. § 158(a)(1), (3), (4), by harassing, discharging and failing to reinstate Shirley Anenburn because she had engaged in protected labor activity; and (2) the Company had violated Section 8(a)(1) of the NLRA by promising and granting its employees special benefits to induce them to vote against unionization.*fn3

The ALJ subsequently ordered that Shirley Anenburn be reinstated, with full back pay and seniority, to her former position as a registered nurse at the Avraham facility. He also ruled that a new election be held because the prior voting had been tainted by the Company's illegal promise of special benefits. In the Matter of American Geri-Care, NLRB, JD-(NY)-57-81 (June 15, 1981), reprinted in J. App. at 8. The Board affirmed the ALJ's findings and rulings. American Geri-Care, Inc., 258 N.L.R.B. 1116 (1981).


A. Anenburn Incident

Shirley Anenburn was employed by the Company during most of 1979 as a registered nurse at the Avraham facility.*fn4 Anenburn actively supported Local 144 during the pre-election campaign. She signed an authorization card, collected cards from other nurses, and attended an organizational meeting sponsored by the union. Anenburn was subpoenaed to appear as a witness on behalf of Local 144 at an NLRB representation hearing that was held on November 15, 1979.*fn5 The parties concede that the Company was aware of Ms. Anenburn's pro-union sympathies.

Management's treatment of Ms. Anenburn took a decided turn after she appeared at the Board hearing on behalf of Local 144. On November 16, 1979, one day after she attended the representation hearing, the Company issued a warning notice to Anenburn citing her for tardiness. On the following day, November 17, 1979, management denied Anenburn's request for vacation leave even though she had been assured verbally that her application would be granted. Finally, Ms. Anenburn was discharged on November 21, 1979, purportedly because she abandoned a dying patient while on duty.

At the conclusion of the administrative proceedings, the ALJ reviewed these incidents and found that the Company took action against Ms. Anenburn not for prudent business reasons, but rather principally in retaliation for her support of Local 144. He cited American Geri-Care for violations of Sections 8(a)(1), (3) and (4) of the Act.

Sections 8(a)(1), (3) and (4) of the National Labor Relations Act provide in pertinent part that it shall be an unfair labor practice for an employer:

(1) to interfere with, restrain, or coerce employees in the exercise of [their Section 7 rights];*fn6

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership ...

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