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Windsor Redding Care Center, LLC v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

December 10, 2019


          Argued October 15, 2019

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

          John J. Manier argued the cause for petitioner. With him on the briefs was John B. Golper.

          Michael R. Hickson, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Peter B. Robb, General Counsel, David Habenstreit, Acting Deputy Associate General Counsel, and Elizabeth Heaney, Supervisory Attorney.

          David A. Rosenfeld was on the brief for intervenor Service Employees International Union Local 2015 in support of respondent.

          Before: Henderson and Rogers, Circuit Judges, and Edwards, Senior Circuit Judge.



         The National Labor Relations Board found that Windsor Redding Care Center ("the Company") violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by suspending and discharging one of its employees, Angelia Rowland. The Company petitions for review of that finding, and the Board has applied for enforcement of its Order, which includes matters not contested by the Company. The issue before the court is whether the Board's finding that the Company suspended and discharged Rowland because she engaged in protected activity is unsupported by substantial evidence on the record, which includes contrary findings of the administrative law judge ("ALJ") and the evidence relied on by the dissenting Member of the Board. Although the Board is not obliged to agree with either the judge or its dissenting Member, the Board is obligated to confront evidence detracting from its conclusions, particularly where the dissenting Member has offered a non-frivolous analysis. For the following reasons, we grant the Company's petition and deny the Board's application for enforcement of its Order as it relates to Rowland.


         In view of our conclusion that the Board's decision relating to the Company's suspension and discharge of Angelia Rowland was unsupported by substantial evidence, we set forth the record evidence in some detail. First, certain evidence is undisputed. The Company is a skilled nursing home in Redding, California. Its nurse employees, among others, are unionized and represented by the Service Employees International Union United Service Workers-West ("the Union"). Rowland was a nurse employed by the Company for approximately eleven and a half years, and was well-regarded. She was also visibly involved in the Union's activities, campaigning for the Union before the election, demonstrating pro-Union signs in her car in the Company parking lot, and participating in collective bargaining as a member of the Union's bargaining committee.

         Further, on May 24, 2012, Rowland accompanied "Resident B," a patient of the Company, to an off-site doctor's appointment. Rowland and Resident B were transported to the doctor's office in a van driven by Lewis Johnson, who was employed by a third-party company. Resident B was known to be a difficult patient; she regularly yells and curses at her caregivers. According to Rowland's testimony, which was corroborated by other Company employees, Resident B often says "knock it off" and "I'll beat your ass" and sometimes says those two phrases in combination. Tr. 318:20-25 (Aug. 21, 2012). The ALJ found that Resident B is "prone to frequent, sometimes near constant, outbursts of yelling, screaming, and threatening, accompanied by the use of profanity. Sometimes those outbursts also include threats of bodily harm." ALJ Dec. at 10. Rowland and the Company also agreed that Resident B often varies the sound and volume of her voice.

         Second, the relevant disputed facts relate to what happened when Rowland and Resident B were entering the doctor's office and Resident B was shouting and cursing. Terra Pagnano, a doctor's office employee at the front desk when Rowland and Resident B were entering, testified that she heard - but did not see - Rowland tell Resident B in response, "If you don't knock that off, I'm going to beat your ass." Tr. 797:4-5 (Aug. 23, 2012). Two other doctor's office employees at the front desk testified that they heard the same thing. The doctor's office employees were shocked, and Pagnano called Jane Thimmesch, the Company's Director of Nursing, to report what they had heard. Thimmesch passed along that information to Anne Gilles, an administrator at the Company and Rowland's supervisor. Gilles immediately went to the doctor's office and interviewed two of the three employees who claimed to have heard Rowland threaten Resident B. She impressed upon them the gravity of their accusation and asked them to repeat their story multiple times. Gilles also spoke with Johnson, the van driver; at the time, he was preoccupied with an electronic device and was terse. Johnson testified that he told Gilles that he "didn't see anything" happen between Rowland and Resident B. Tr. 457:14-24 (Aug. 22, 2012).

         Third, what happened thereafter is also largely undisputed. When Rowland returned to the Company facility, Thimmesch asked her to meet with Gilles. Rowland brought a Union representative with her to the meeting, at which Gilles informed her of the accusations against her and notified her that she would be suspended pending an investigation, pursuant to the Company's elder-abuse policies. Rowland denied yelling anything at Resident B in the doctor's office.

         The following day, May 25, Gilles returned to the doctor's office and spoke with the three employees who had accused Rowland of threatening Resident B. Gilles again impressed upon them the gravity of their accusations. In light of Resident B's known habit of speaking in different voices, Gilles also asked them if they were sure that it wasn't Resident B that they had ...

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