RICHARD L. AHEARN, Regional Director of the Ninth Region of the National Labor… v. Jackson Hospital Corporation, d/b/a Kentucky River Medical Center, Inc.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0428P (6th Cir.)
File Name: 03a0428p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RICHARD L. AHEARN,
Regional Director of the
Ninth Region of the National
Labor Relations Board, for
and on behalf of the
NATIONAL LABOR RELATIONS
BOARD,
Petitioner-Appellee,
v.
JACKSON HOSPITAL
CORPORATION, d/b/a
Kentucky River Medical
Center, Inc.,
Respondent-Appellant.
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No. 02-5371
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 02-00009—Joseph M. Hood, District Judge.
Argued: September 17, 2003
Decided and Filed: December 5, 2003
Before: BOGGS, Chief Judge; KRUPANSKY and CLAY,
Circuit Judges.
2 Ahearn v. Jackson Hospital Corp. No. 02-5371
_________________
COUNSEL
ARGUED: Robert D. Hudson, GREENEBAUM, DOLL &
McDONALD, Covington, Kentucky, for Appellant. Aaron
N. Karsh, NATIONAL LABOR RELATIONS BOARD,
APPELLATE COURT BRANCH, Washington, D.C., for
Appellee. ON BRIEF: Robert D. Hudson, Luann Devine,
GREENEBAUM, DOLL & McDONALD, Covington,
Kentucky, for Appellant. Aaron N. Karsh, Judith I. Katz,
Seema Nanda, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Respondent Jackson Hospital
Corporation, d/b/a Kentucky River Medical Center, Inc. (the
“Hospital”), appeals from the judgment of the district court,
entered on January 22, 2002, which granted to Petitioner
Richard L. Ahearn (“Petitioner”), Regional Director of the
Ninth Region of the National Labor Relations Board (the
“Board”) and on behalf of the Board, a temporary injunction,
pursuant to § 10(j) of the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 160(j). The petition for injunction
arose from the Board’s administrative investigation into
unfair labor practices allegedly committed by the Hospital
against its employees, in violation of § 8(a)(1), (3), and (5) of
the NLRA, 29 U.S.C. § 158(a). On appeal, the Hospital
principally argues that (1) the district court used an incorrect
legal standard in granting the injunction, and (2) the district
court’s decision amounted to clear error and an abuse of
discretion.
For the reasons that follow, we AFFIRM the district
court’s injunction order.

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 3
Procedural History
On January 26, 2001, the Board filed a Petition for
Injunction under § 10(j) of the NLRA, 29 U.S.C. § 160(j).
The petition alleged, in pertinent part, that there was
reasonable cause to believe that the Hospital had undertaken
various actions that violated § 8(a)(1), (3), and (5) of the
NLRA, 29 U.S.C. § 158(a). On February 16, 2001, the Board
filed an Amended Petition to the same effect, which included
additional claims for relief, specifically: (1) unlawful threats
of discharge, loss of jobs, and license revocation for engaging
in strike activity; (2) unlawful surveillance of employees
participating in a union strike; (3) unlawful discharge and
disciplining of employees in retaliation for their union
activities; (4) post-strike implementation of break schedules
for unit employees without providing notice and opportunity
for collective bargaining on the issue; and (5) refusal to meet
and collectively bargain with the employees’ recently-
established union. The Board requested injunctive relief,
specifically that the district court order the Hospital (pending
the NLRB’s ruling on the merits with respect to a
simultaneous administrative proceeding before it) to reinstate
the discharged employees, to recognize and bargain with the
union, and to cease and desist from committing the unfair
labor practices. The Hospital filed an answer, in which it
denied that it had engaged in unfair labor practices and denied
that the Board was entitled to a temporary injunction.
On January 18, 2002, the district court entered a 60 page
memorandum opinion and order granting the petition in part.
In relevant part, it ordered the reinstatement of three
discharged Hospital employees, and it ordered the Hospital to
cease and desist from unlawfully threatening employees with
discharge, conducting surveillance of its employees while
they are lawfully striking, and altering employees’ break
schedules without providing notice and opportunity to engage
in collective bargaining. Judgment to this effect was entered
on January 22, 2002.
4 Ahearn v. Jackson Hospital Corp. No. 02-5371
On February 20, 2002, the Hospital moved for a partial stay
pending appeal to this Court, which the district court denied
on March 22, 2002. The Hospital filed a notice of appeal on
March 19, 2002. The Board filed a cross-appeal with respect
to the portions of the district court’s order that denied
injunctive relief, but later withdrew the cross-appeal by
stipulation of dismissal on June 24, 2002.
Facts
A. The Union’s Formation and the Hospital’s Refusal to
Negotiate
The Hospital operates a 55 bed acute care hospital in
Jackson, Kentucky. On June 8, 1998, the Union Steelworkers
of America, AFL-CIO-CLC (the “Union”) was certified as the
exclusive bargaining representative for the Hospital’s 170
nurses and non-professional employees. The Union met with
the Hospital several times to negotiate a first contract, but was
unsuccessful. A decertification election was held on
December 10, 1999, but the Union filed unfair labor practice
charges, and the Board impounded the ballots pending an
investigation. Following the resolution of these charges, the
ballots were counted and the Union won the election. The
Union demanded bargaining in April of 2000, but the
Hospital refused to meet with the Union, claiming that the
Union had to provide a complete economic proposal before it
would bargain.
B. The Hospital’s Threats, Union Strike, and the
Hospital’s Hostility Toward the Strikers
By the spring of 2000, the employees began to murmur
about a possible strike to pressure the Hospital into
bargaining with the Union. Evidence was presented that in
April 2000, the Hospital’s supervisors told the employees that
strikers might lose their jobs. Supervisor Ken Hicks told an
employee in April 2000 that, in the event of a strike,
employees who were replaced “would not have a job” when

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 5
the strike ended. House supervisor Phyllis Gibbs told a group
of employees in June that any employees who did not have a
contract and went on strike would be fired. Also in June
2000, nursing supervisor Allena Hale told three employees
that she had been told that employees would be fired if they
went on strike without a contract. Dr. Edward Burnette, the
emergency room director, told at least four employees that if
they went on strike they were “setting [themselves] up to be
fired.” (J.A. at 763-66). On several other occasions, Dr.
Burnette told employees that if they insisted on participating
in union activity and going on strike they would lose their
jobs.
In mid-June 2000, the Union served the Hospital with a 10
day strike notice. Soon thereafter, supervisor Diana
Blankenship told a group of five employees that “if this is not
ruled an unfair labor practice strike, some of you all will not
be coming back,” and made a similar comment to another
employee on another occasion. On July 7, 2000, employee
Anita Turner approached her supervisors, asking to alter her
schedule so she could participate in the strike. Chief nursing
officer Michelle Boyce-Obenchain became “very angry” and
“loud” and told Turner that if she left the facility Obenchain
would see to it that Turner lost her license, based on patient
abandonment. Obenchain had initiated such procedures in the
past.
Nevertheless, the Union went on strike on July 8, 2000.
During the strike, the Hospital had picketers videotaped as
they engaged in their strike activities. The Hospital also
posted anti-union signs from a hospital window visible from
where the employees picketed. On August 15, 2000, the
Union made an unconditional offer to return to work, which
the Hospital accepted. The strikers returned to work on
August 20, 2000.
6 Ahearn v. Jackson Hospital Corp. No. 02-5371
C. The Hospital’s Post-Strike Adverse Actions
1. Terminations of Laotta Sizemore, Clara Gabbard,
and Sandra Barker Hutton.
This appeal principally revolves around the terminations of
three employees: Laotta Sizemore, Clara Gabbard, and
Sandra Barker Hutton.
Laotta Sizemore was a registered nurse (RN) hired by the
Hospital in 1992 as a weekend house supervisor. Sometime
after the union was originally certified in 1998, Sizemore’s
position was eliminated and she became a nonsupervisory
night shift RN. Thereafter she became active in the Union,
wearing union buttons to work and speaking out in favor of
the Union. During the strike, Sizemore accepted a full-time
position as an emergency room nurse manager at another
hospital, but she wished to continue working at the Hospital
on a part-time, or “PRN,” basis. On August 15, 2000, the day
the strike ended, Sizemore notified the Hospital of this
desired change by letter, stating, “Effective today, I would
like to change my status from full-time to PRN.” The
Hospital sent Sizemore a return-to-work letter, dated
August 17, 2000, instructing her to report to work at 5 p.m. on
August 22, 2000. (J.A. at 735, 962.) Sizemore indeed
reported on August 22, 2000 only to discover that although
her name appeared on the schedule, her shifts were crossed
out. Sizemore queried Hale as to why her shifts were crossed
out, and Hale replied that she did not know. Sizemore left
messages for Obenchain and her supervisor, neither of whom
returned her calls.
On September 4, 2000, Sizemore agreed to cover someone
else’s shift and completed the necessary paperwork. When
she called supervisor Jeri Howard to ensure that she was on
the schedule, Howard replied that Sizemore was “not on the
schedule any more.” (J.A. at 740.) As it turned out, after
Sizemore submitted her change-of-status request, Obenchain
recommended to the Hospital’s CEO David Bevins that

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 7
Sizemore not be retained as a PRN because she had failed to
work a 15 day notice period before resigning, pursuant to the
Hospital’s resignation policy. Thus, Sizemore was
discharged. Her discharge papers indicate an effective date of
August 21, 2000 and state that Sizemore resigned, failed to
work her notice period, and was non-rehirable. Obenchain
nevertheless failed to contact Sizemore with any of this
information, nor did she even return the calls Sizemore had
placed to her upon discovering her crossed-out schedules on
August 22, 2000. Obenchain also acknowledged that no
Hospital policy states that an employee has to resign or work
a notice period before converting from full-time to PRN
status, which is what Sizemore’s August 15, 2000 written
notice had clearly endeavored to do.
Clara Gabbard had been a part-time ward clerk with the
Hospital since 1990. In April of 2000, Gabbard gave her
supervisor, Robin McGlothen, written notice that she was
unavailable to work the weekends of August 27 and
September 2, 2000, due to her annual participation as
chairperson of the Breathitt County Honey Festival.
Subsequently, Gabbard became involved in union activity,
informing Obenchain that in the event of a strike she would
not cross the picket line and supposedly received a “mean”
and “hateful” look in response. (J.A. at 698-701.) Indeed,
Gabbard actively participated in the strike, including making
pro-strike tapes that were placed on a local radio station and
published in the newspaper.
After the strike, Gabbard again reminded the Hospital on
August 17 and 20, 2000, that she needed the following two
weekends off to serve at the Honey Festival. The Hospital
nevertheless put her on the schedule, and Gabbard learned of
this from another employee on August 26, 2000. Gabbard
again gave notice, this time to supervisor Hale. Gabbard
indeed did not work the weekend of August 27, 2000, and the
Hospital found another employee to cover the shift.
However, on August 31, 2000, the Hospital notified Gabbard
by letter of her termination. Obenchain testified that she
8 Ahearn v. Jackson Hospital Corp. No. 02-5371
recommended Gabbard’s discharge for failing to follow the
Hospital’s “trade and cover” policy. (J.A. at 857-59.) The
policy requires employees to obtain their own coverage if
they do not notify supervisor Obenchain of such intended
absences by 7:00 a.m. of the 15th of the month. Because
Obenchain received Gabbard’s request for time off on August
20, 2000, the Hospital apparently reasoned, Gabbard was
responsible for finding her own coverage. The Hospital had
mailed a copy of the policy with correspondence, via certified
mail, directing Gabbard to follow the “trade and cover”
policy. However, Gabbard evidently did not receive the
certified mail. However, the “trade and cover” policy does
not mention discipline or discharge for failure to follow the
policy. (J.A. at 882-84.)
The Hospital has a separate “incidents of absence” policy,
which provides that for each unexcused absence where an
employee provides at least two hours notice, the employee
receives an “incident of absence.” (J.A. at 1007). Two
“incidents of absence” within a 90 day period results in a
verbal warning. It is undisputed that Gabbard provided well
over two hours notice of her intended absence. (Indeed,
Gabbard provided several months’ notice considering her first
notification to her supervisor in April of 2000, although
admittedly not to Obenchain directly.) It also appears
undisputed that Gabbard did not have any “incidents of
absence” on her record at the time of her August 27, 2000
absence. Nevertheless, Obenchain did not consider an
alternative penalty to discharge in Gabbard’s case. Moreover,
prior to the strike, another employee, Jeri Howard, had agreed
to cover another employee under the “trade and cover” policy,
but failed to show up, and received only a verbal warning.
(J.A. at 864-68.) No explanation was provided by the
Hospital for this apparent differential treatment.
Sandra Barker Hutton was a billing and admitting clerk for
the Hospital between March 1996 and March 1998, and a
PRN thereafter. Hutton also worked full-time during the day
for the commonwealth attorney’s office. Hutton also was

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 9
active with the Union, wearing buttons from 1998 through
July of 2000, and she picketed during the strike. Following
the strike, the Hospital informed Hutton by letter of her return
to work as a PRN.
In March of 2000, the Hospital’s owner, Community Health
Systems (“CHS”) reached a $31 million settlement agreement
with the United States government regarding its various
violations of the False Claims Act (“FCA”), 31 U.S.C. § 3729
et seq. As part of this agreement, CHS’s hospitals were
required to conduct claim fraud prevention training in the
form of a one-hour video by September 9, 2000. Based on
the September 9, 2000 deadline, the Hospital set an internal
deadline of September 1, 2000 for the completion of training.
The Hospital’s CFO Randy Cooper posted a schedule of
viewings to take place on August 14 to 27, 2000.
Hutton received a phone call from representatives from the
Hospital’s business office, who scheduled Hutton to watch
the compliance video on August 30, 2000 at 3:00 p.m.
Hutton was never informed by anyone of the September 1
deadline or that anyone missing the deadline would be
terminated. Hutton took time off from her full-time job to
attend the scheduled August 30, 2000 viewing, but was told
that the training had been canceled due to a computer foul-up.
She was also told by her supervisor Denise Trusty that she
would be called to reschedule the training and that she had to
complete the training before returning to work. Again,
Hutton was not informed of any deadline to complete the
training.
A week later, after her supervisor still had not called her,
Hutton called Trusty to ask about the training. Trusty told her
that she did not have a date yet but told Hutton to call back
the following Monday. Hutton called on the following
Monday, September 11, 2000, and left a message but received
no return phone call. The following day, she received a letter
from CFO Randy Cooper informing her that she was being
purged from the Hospital’s PRN listing because she had
10 Ahearn v. Jackson Hospital Corp. No. 02-5371
“made no effort to attend any video session” and because the
deadline for viewing had been August 27, 2000 (not
September 1, 2000, as Cooper later testified). (J.A. at 803,
964).
2. Other Adverse Actions
Prior to the strike, the Hospital’s housekeeping and
maintenance employees had been allowed to select their own
break and lunch times. However, immediately following the
strike, the Hospital implemented a schedule for breaks and
lunches, which assigned a particular break and lunch time for
each employee. The record also contains an assortment of
evidence pertaining to various other firings of employees who
had participated in the strike, namely Lois Noble, Beverly
Clemons, Sandra Baker, and Diane Taulbee. Additionally,
the Hospital issued a verbal warning to phlebotomist Sally
Dunn, who was a strong union supporter prior to the strike.
On her second day back to work following the strike, Dunn
testified that she was approached by her supervisor, Diana
Blankenship, and accused of taking a 30 minute break, when
in fact she had taken a 15 minute break. Dunn told
Blankenship that she could verify it on the computer, but
Blankenship allegedly replied, “It doesn’t matter, they said
you did, so consider this a verbal warning.” Blankenship then
asked Dunn if she had taken a phlebotomy tray outside while
smoking, and Dunn admitted that she had. Blankenship
repeated that Dunn could consider this a verbal warning.
3. The Chilling Effect on Employees
Evidence in the form of several affidavits was presented
indicating that these actions by the Hospital had created a
chilling effect on the employees’ Union support. Registered
nurse Patricia Hollifield averred in an affidavit that she knew
of several strikers, including Gabbard, who were fired after
the strike and that she was very careful thereafter to avoid
openly supporting the Union; she also indicated that other
employees wanted to “lay low” about Union support for fear

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 11
of retaliatory discharge. Registered nurse Anita Turner, who
had been threatened by Obenchain with license revocation,
averred that she felt like a “nervous wreck” based on her
knowledge of several firings and Obenchain’s threats, and she
consequently accepted a job at another hospital. Registered
nurse Shirley White had also experienced a chilling effect
after learning of several firings (including Gabbard’s),
causing her to believe that “the [H]ospital wants to fire all the
strikers.” She averred that she had spoken to other employees
who felt the same way. Although she had worn a button and
attended union meetings prior to the strike, she never wore a
union button again after the strike, for fear of retaliation. She
also indicated that she never saw other employees wearing
union buttons after the strike. Additionally, Janie Jenkins
testified that, although she had worn a union button regularly
for six months preceding the strike, she only wore a union
button for a week following the strike and stopped thereafter,
as did virtually all of her colleagues. She added that because
of the discharges, the threats, the resignations, and the
Hospitals’ refusal to bargain, she “felt really discouraged and
felt like the union couldn’t really help us.” (J.A. at 113.) She
also averred that she was afraid of being fired for any small
error, and that she had talked with several other employees
who felt the same way.
D. The District Court’s Decision
In a January 18, 2002 order, the district court found that the
Board had established reasonable cause to believe that the
Hospital had committed § 8(a)(1) violations with respect to
the firing of six employees (including the three firings at issue
in this appeal), as well as the Hospital’s repeated threats of
job loss or license revocation, intimidating anti-union signs
during the strike, unlawful video surveillance of the strikers,
and alteration of employees’ break schedules after the strike.
Regarding Sizemore’s discharge, the district court found
that Sizemore’s August 15, 2000 letter requesting a change in
status was not a resignation, that no policy required a nurse to
12 Ahearn v. Jackson Hospital Corp. No. 02-5371
resign before changing status, and that no one notified
Sizemore of any possible adverse consequences related to her
request. Regarding Gabbard’s discharge, the court found that
evidence existed in the record indicating that the Hospital’s
asserted reason for the termination was pretextual inasmuch
as a similarly-situated employee had received less harsh
treatment and the Hospital’s policies did not contemplate
discharge for first-time unexcused absences. Regarding
Hutton’s discharge, the court found reasonable cause for a
§ 8(a)(1) violation inasmuch as Hutton’s discharge closely
followed her strike participation and because she was not
notified of any adverse consequences for failure to complete
training by a certain date.
The district court also found that granting a temporary
injunction for interim reinstatement of the terminated
employees was “just and proper” because the threats of
getting fired, closely followed by actual firings, was
“inherently chilling to union support,” and because the four
affidavits suggested that the Hospital’s adverse actions were
“actually having a chilling effect on union support.” (J.A. at
90.) The district court therefore ordered the Hospital to
reinstate Sizemore, Gabbard, and Hutton, as well as the other
adversely-affected employees. The court also ordered the
Hospital to cease and desist from unlawfully threatening its
employees with termination, engaging in surveillance of
striking employees, and altering the employees’ break
schedule without notice and opportunity for union bargaining.
E. The Administrative Law Judge’s Administrative
Decision
On February 20, 2002, the administrative law judge (ALJ)
presiding over the administrative proceedings with respect to
the Hospital’s actions, also found that the Hospital had
unlawfully terminated Sizemore, Gabbard, and Hutton. The
ALJ rejected the Hospital’s argument that Sizemore failed to
follow the resignation and reinstatement policy, finding
instead that Sizemore did not resign but only requested a

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 13
change of status. The ALJ was particularly persuaded by the
fact that Obenchain initially granted Sizemore’s request and
placed her on the schedule but later crossed her off. The ALJ
also found that Gabbard’s actions were not subject to
termination under the Hospital’s policies inasmuch as she
gave more than two hours’ notice of her intended personal
absence and that similarly situated employees had received
better treatment. Finally, the ALJ found that Hutton’s
termination was discriminatory, based on four factors: (1) the
Hospital’s inconsistent testimony about the deadline for
watching the compliance video, (2) the Hospital’s failure to
inform Hutton that she would be terminated if she did not
watch the video, (3) the Hospital’s false accusation that
Hutton made no attempt to watch the video, when in fact she
had shown up as scheduled and made several follow-up phone
calls to no avail, (4) the Hospital’s false accusation that
Hutton was difficult to reach, and (5) “significant evidence of
disparate treatment.” Indeed, the ALJ refused to credit any of
the Hospital’s representatives’ testimony on the matter
inasmuch as it was “replete with falsehoods and with obvious
and unexplained inconsistencies.” (J.A. at 63.) The ALJ also
found that the Hospital’s threats, video surveillance, and
intimidating signs activity constituted § 8(a)(1) violations,
and that the unilateral break schedule changes violated
§ 8(a)(5) of the NLRA.
Unlike the district court, however, the ALJ did not find the
discipline of Sally Dunn, who had been smoking a cigarette
while handling blood samples, violated § 8(a)(3). In light of
this ruling, Petitioner no longer argues in favor of the district
court’s ruling on this point.
I.
The issue of whether a district court applied the correct
legal standard is a legal question, which this Court reviews
de novo. United States v. Willis, 257 F.3d 636, 642 (6th Cir.
2001) (citing In re Sorah, 163 F.3d 397, 400 (6th Cir. 1998))
(internal citation omitted).
14 Ahearn v. Jackson Hospital Corp. No. 02-5371
The Hospital devotes a large segment of its brief to
challenging the district court’s use of the “reasonable
cause/just and proper” standard, which this Court has
employed with respect to § 10(j) injunctions. Specifically,
the “reasonable cause/just and proper” standard requires that
a district court find that (1) there is “reasonable cause” to
believe that unfair labor practices have occurred, and that
(2) injunctive relief with respect to such practices would be
“just and proper.” Schaub v. West Mich. Plumbing &
Heating, Inc., 250 F.3d 962, 969 (6th Cir. 2001). The
Hospital argues that the more “traditional” framework for
reviewing petitions for injunctions is correct in this context
and urges this Court to reverse on this basis. The traditional
framework is the four-factor test employed by this Court in
the context of other petitions for injunctions, and requires a
district court to consider (1) whether the moving party has a
substantial or strong likelihood of success on the merits;
(2) whether the moving party would otherwise suffer
irreparable injury; (3) whether the issuance of a preliminary
injunction would cause substantial harm to others; and
(4) whether a preliminary injunction would serve the public
interest. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.
2000). We disagree with the Hospital.
A. The “Reasonable Cause/Just and Proper” Inquiry is
Supported by Longstanding Sixth Circuit Precedent
that a Panel Cannot Overrule
We note initially that this circuit has consistently used the
“reasonable cause/just and proper” standard. A contrary
holding of this panel would contravene the rule that one panel
cannot overrule another panel; thus the “reasonable cause/just
and proper” standard may only be overruled by this Court
sitting en banc or the Supreme Court. See United States v.
Moody, 206 F.3d 609, 615 (6th Cir. 2000) (citing Salmi v.
Secretary of Health & Human Servs., 774 F.2d 685, 689 (6th
Cir. 1985)).

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 15
Although the Hospital claims that the U.S. Supreme Court
has ruled to the contrary on this issue, it only cites
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) for this
proposition. The Hospital fails to explain the many Sixth
Circuit cases that have been decided using the “just and
proper” standard in the twenty years since Weinberger. See,
e.g., Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26 (6th
Cir. 1988); Gottfried v. Sheet Metal Workers’ Int’l Ass’n,
Local Union No. 80, 927 F.2d 926 (6th Cir. 1991); Kobel v.
United Paperworkers Int’l., 965 F.2d 1403, 1409 n.3 (6th Cir.
1992); Schaub, 250 F.3d at 669. If the current 10(j) standard
were in clear contravention of Supreme Court precedent, it
seems unlikely that this or any other circuit would have
continued to adhere to it for two decades without concern.
The Hospital also asserts that our decision in EEOC v.
Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1981)
compels us to use the “traditional” standard. Anchor Hocking
held that Title VII’s provision authorizing the Equal
Employment Opportunity Commission (“EEOC”) to request
temporary injunctive relief does not permit a district court to
issue a preliminary injunction without the traditional showing
of irreparable injury. Id. at 1040-41. Anchor Hocking thus
rejected the EEOC’s suggested standard that, upon the filing
of a discrimination charge–a prima facie showing of a Title
VII violation–and a district court’s determination that
“prompt judicial action is necessary,” a preliminary injunction
must issue. Id. at 1040-41. However, Anchor Hocking dealt
with a different statute, specifically, § 706(f)(2) of Title VII
of the Civil Rights Act of 1964 (as amended), 42 U.S.C.
§ 2000e-5(f)(2), and the Court undertook a careful statutory
analysis before rejecting the EEOC’s argument that a showing
of irreparable injury is not necessary. And, contrary to the
Hospital’s contentions, Title VII does not have the same
language as the NLRA: in particular Title VII does not
16 Ahearn v. Jackson Hospital Corp. No. 02-5371
1Title VII provid es, in releva nt part, that “[w]henever a charge is
filed with the Commission and the Commission concludes on the basis of
a preliminary investigation that pro mpt judicial action is necessary to
carry out the purposes of this Act, the Commission . . . may bring an
action for appropriate temporary or preliminary relief pending final
disposition of such charge.” 42 U.S.C. § 2000e-5(f)(2). Section 10(j) of
the NLRA, on the other hand, indicates that “[t]he Board shall have power
. . . to petition any United States district court . . . for app ropriate
temporary relief or restraining order. . . . [T]he court shall cause notice
thereof to be served upon such person, and thereupon shall have
jurisdiction to grant to the Board such temporary relief or restraining
order as it deems just and proper.” 29 U.S.C. § 160(j) (emp hasis added).
contain the “just and proper” language.1 The Hospital may
realize that these cases are not on point, given that it asks the
Court to “revisit the current 10(j) standard” and “abandon[]”
it “in favor of a traditional balancing test.” (Hospital Br. at
17) (emphasis added).
B. The “Reasonable Cause/Just and Proper Standard”
Properly Takes into Account a Hospital’s Interests
The Hospital also suggests that the “reasonable cause/just
and proper” standard does not properly take into account the
special interests of a hospital in maintaining a safe
environment and optimal patient care, and that this Court
could alternatively carve out a special exception for hospitals.
We disagree.
The case law reflects that the “reasonable cause/just and
proper” standard adequately protects the special interests of
hospital employers in maintaining optimal patient care. For
instance, in Frye v. District 1199, 996 F.2d 141 (6th Cir.
1993) (per curiam), the district court granted an injunction
limiting the amount of picketing in which workers could
engage around a nursing home. The union appealed, and the
Sixth Circuit affirmed, holding that the injunction was
appropriate. Among other things, it observed that “when
Congress amended the NLRA in 1974 to cover health care
institutions, ‘there was a recognized concern for the need to

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 17
2At oral argument, counsel for the Ho spital argued that the current
“reaso nable cause/just and proper” standard “handcuffs” district courts in
deciding whether to grant an injunction beca use a district court is not
perm itted to consider outside testimony under the stand ard. C ontrary to
the Hospital’s argument, we think the current stand ard has shown its
flexibility in a variety of factual circumstances.
avoid disruption of patient care whenever possible.’ . . .
Accordingly, a court may consider the special characteristics
of health care institutions when determining an appropriate
remedy.” Id. at 145 (citations omitted).
The most likely reason that the district court did not discuss
this “patient care” theory at length is because this case does
not raise health or safety concerns. It is not as if employees
Sizemore, Gabbard, and Hutton were fired for engaging in
dangerous behavior that could negatively impact the welfare
of the Hospital’s patients. The Hospital makes much of the
district court’s decision with respect to Sally Dunn, who had
been disciplined for smoking while carrying a tray of blood
samples, but this has essentially become a non-issue
inasmuch as the ALJ ruled in favor of the Hospital with
respect to the discipline of this employee and the Board has
decided not to pursue her claim on appeal. Because we
believe that sufficient flexibility exists in the application of
the “reasonable cause/just and proper standard” to
differentiate hospitals from other types of employers to the
extent necessary to protect a hospital’s special circumstances,
we reject the hospital’s rationale.2
We pause to observe that a number of circuits have
overhauled the “reasonable cause/just and proper” standard,
instead adopting the “traditional” test. See, e.g., Pye v.
Sullivan Bros. Printers, Inc., 38 F.3d 58, 64 n.7 (1st Cir.
1994); Miller v. California Pac. Med. Ctr., 19 F.3d 449,
456-59 (9th Cir. 1994) (en banc); Kinney v. Pioneer Press,
881 F.2d 485, 489-91 (7th Cir. 1989); see also Sharp v.
Parents in Cmty. Action, Inc., 172 F.3d 1034, 1038 (8th Cir.
1999) (retaining the “reasonable cause/just and proper”
18 Ahearn v. Jackson Hospital Corp. No. 02-5371
standard but also incorporating the traditional elements, such
as irreparable injury, into the “just and proper” prong of the
analysis). However, other circuits have retained the standard.
See, e.g., Sharp v. WEBCO Indus., Inc., 265 F.3d 1085,
1089-90 (10th Cir. 2001); Hoffman ex rel. N.L.R.B. v. Inn
Credible Caterers, Ltd., 247 F.3d 360, 364-65 (2d Cir. 2001).
Therefore, we are not alone in retaining the “reasonable
cause/just and proper standard.”
II.
We next decide whether the district court committed error
when it granted an injunction for the Petitioners in this case.
As we just stated, the “reasonable cause/just and proper” test
requires a district court to find that there is “reasonable cause”
to believe that the employer engaged in unfair labor practices,
and that the relief requested is “just and proper.” We review
the “reasonable cause” finding for clear error. Gottfried v.
Frankel, 818 F.2d 485, 493 (6th Cir. 1987) (citing Kobell v.
Suburban Lines, Inc., 731 F.2d 1076, 1084 (3d Cir. 1984)).
This Court reviews the “just and proper” determination for an
abuse of discretion. Schaub, 250 F.3d at 970 (citing Kobell
v. United Paperworkers Int’l Union, AFL-CIO, CLC, 965
F.2d 1401, 1409-10 (6th Cir. 1992)).
A. “Reasonable Cause/Just and Proper”
The prevailing standard district courts in the Sixth Circuit
employ when considering a § 10(j) petition is the “reasonable
cause/just and proper” standard. Under this standard, the
district court must find that (1) there is “reasonable cause” to
believe that the employer engaged in unfair labor practices,
and (2) injunctive relief is “just and proper.” NLRB v. Ky.
May Coal Co., 89 F.3d 1235, 1239-40 (6th Cir. 1996) (citing
Fleischut, 859 F.2d at 29). A district court also must be
mindful that “[p]roceedings pursuant to § 10(j) are
subordinate to the unfair labor practice proceedings to be
heard before the Board.” Schaub, 250 F.3d at 969 (citing
Fleischut, 859 F.2d at 28). Consequently, it is not the job of

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 19
the district court, in considering a § 10(j) petition, “to
adjudicate the merits of the unfair labor practice case.” Id.
(citing Fleischut, 859 F.2d at 28.)
The alleged violations at issue pertain to§ 8(a)(1), (3), and
(5) of the NLRA, 29 U.S.C. § 158(a), which provides as
follows:
It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this
title;
. . .
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor
organization . . .;
. . .
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the
provisions of section 159(a) of this title.
29 U.S.C. § 158(a).
1. Reasonable Cause
Petitioner’s burden of showing “reasonable cause” is
“relatively insubstantial,” inasmuch as the proof requires only
that the Board’s legal theory underlying the allegations of
unfair labor practices be “substantial and not frivolous” and
that the facts of the case be consistent with the Board’s legal
theory. Schaub, 250 F.3d at 969 (quoting and citing
Fleischut, 859 F.2d at 28, 29). This Court reviews the legal
theory de novo and the facts for clear error. Id. (citing Kobell,
965 F.2d at 1407). In reviewing the supporting facts, a
20 Ahearn v. Jackson Hospital Corp. No. 02-5371
district court “need not resolve conflicting evidence between
the parties” or make credibility determinations. Id. (citations
omitted). “Rather, so long as facts exist which could support
the Board's theory of liability, the district court's findings
cannot be clearly erroneous.” Id. (citations omitted). Indeed,
fact-finding is inappropriate in the context of a district court’s
consideration of a 10(j) petition. Ky. May Coal Co., 89 F.3d
at 1239.
Additionally, a “district court may rely upon both direct and
circumstantial evidence to determine the motive of the
employer with respect to the challenged conduct.” Schaub,
250 F.3d at 970 (citing NLRB v. Vemco, Inc., 989 F.2d 1468,
1477 (6th Cir. 1993)). For instance, “‘the proximity in time
between recent protected activity and measures taken against
the employee engaged in the activity lend support to the
inference of an unfair labor practice.’” Id. (quoting Jim
Causley Pontiac v. NLRB, 620 F.2d 122, 125 (6th Cir. 1980)).
We reiterate that review of the district court’s “reasonable
cause” determination comes under the clear error standard.
Frankel, 818 F.2d at 493.
The statute at issue is § 8(a)(3) of the NLRA, which
prohibits an employer from, “discriminati[ng] in regard to
hire or tenure or employment to . . . discourage membership
in any labor organization . . . .” 29 U.S.C. § 158(a)(3). This
Court has held that an employer’s termination of an employee
for engaging in union activity violates § 8(a)(3). See Birch
Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175,
1179 (6th Cir. 1985).
The relevant question is whether the employer’s
termination of Sizemore, Gabbard, and Hutton was motivated
by anti-union animus. NLRB v. Cook Family Foods, Ltd., 47
F.3d 809, 816 (6th Cir. 1995). If Petitioner demonstrates that
the termination was motivated at least in part by anti-union
animus, the burden shifts to the Hospital to show that it would
have fired the employee anyway. NLRB v. Transp. Mgmt.
Corp., 462 U.S. 393, 399-403 (1983).

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 21
We believe there is more than sufficient evidence in this
record to demonstrate that the Hospital professed a strong
anti-union animus, given evidence of supervisors’ threats to
fire strikers, the Hospital’s generally hostile attitude toward
the Union, its refusal to engage in collective bargaining, and
its display of anti-union signs and use of surveillance during
the strike. Moreover, Gabbard was terminated shortly after
returning to work from the strike, and Sizemore and Hutton
were terminated before they were even able to return to work.
Finally, there is plenty of evidence tending to show the
pretextual nature of the Hospital’s reasons for firing each of
the three employees. With respect to Sizemore, the Hospital
claimed that Sizemore failed to follow the proper 15 day
resignation notice policy, yet it is clear from her August 15,
2000 letter that she had not resigned but rather had requested
a change in work status, which did not require 15 day notice.
With respect to Gabbard, the existing policies indicated that
an unexcused personal absence generally was penalized by
methods short of termination, and indeed a similarly-situated
person had not been terminated. Finally, the Hospital’s
misrepresentations with respect to Hutton, by suggesting that
she made no effort to attend the videotape viewing, along
with the Hospital’s failure to communicate appropriate
deadlines and/or to warn Hutton that not viewing the
compliance videotape would result in termination, clearly
demonstrated the lack of plausibility of its reasons for her
discharge. Moreover, the ALJ’s February 20, 2002 ruling
lends further support to the validity of the district court’s
decision on these issues. Thus, reasonable cause is abundant
with regard to these three terminations, and the district court
did not clearly err with respect to its fact-finding on the
reasonable cause issue.
As to the Hospital’s changes to employees’ break schedule
after the strike, we agree with the district court that the law is
well settled that an employer may not make changes to terms
or conditions of employment without first affording the
employee’s bargaining representative notice and opportunity
to negotiate regarding the proposed changes. See NLRB v.
22 Ahearn v. Jackson Hospital Corp. No. 02-5371
Katz, 369 U.S. 736, 743 (1962); NLRB v. Sanitary Bar &
Burlap Co., 406 F.2d 750, 752 (6th Cir. 1969) (citations
omitted). That was not done here and the district court
properly found reasonable cause to believe the Hospital
violated the NLRA by unilaterally changing the employees’
break schedules after the strike. See 29 U.S.C. § 158(d).
2. Just and Proper
However, finding reasonable cause is not sufficient–the
remedy of a temporary injunction must also be just and
proper. In other words, “[c]ourts must be mindful that 'the
relief to be granted is only that reasonably necessary to
preserve the ultimate remedial power of the Board and is not
to be a substitute for the exercise of that power.’” Schaub v.
Detroit Newspaper Agency, 154 F.3d 276, 279 (6th Cir. 1998)
(citing Gottfried v. Sheet Metal Workers’ Int’l Ass’n, Local
Union No. 80, 927 F.2d 926, 928 (6th Cir. 1991)). Thus,
“[t]he ‘just and proper’ inquiry . . . turns primarily on whether
a temporary injunction is necessary ‘to protect the Board’s
remedial powers under the [NLRA].’” Id. (citing Calatrello
v. Automobile Sprinkler Corp. of America, 55 F.3d 208, 214
(6th Cir. 1995)).
We hold that the district court did not abuse its discretion
in finding interim reinstatement for the three employees to be
“just and proper.” As the district court noted, multiple
terminations of striking employees directly following the end
of the union strike would have an inherently chilling effect on
other employees. See Frankel, 818 F.2d at 495-96 (noting the
appropriateness of an interim reinstatement in the NLRB
context because an alternative result “risk[s] a serious adverse
impact on employee interest in unionization”) (quoting
Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1053 (2d Cir.
1980)); see also Pascarell v. Vibra Screw, 904 F.2d 874, 880
(3d Cir. 1990) (noting that the employer’s discharge of the
entire bargaining committee rendered the chilling effect on
other non-activist employees “patent”).

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 23
The four affidavits presented to the district court indicated
that the terminations indeed did have a chilling effect on
union activity, inasmuch as the employees stopped wearing
union buttons, spoke in hushed tones about union activities,
and feared reprisal. Some affidavits spoke of the low morale
and overall sense that the Union could not assist them as
reactions to the multiple firings closely following the strike.
It is also noteworthy that these three terminations represent
the culmination of several months of severe hostility on the
Hospital’s part toward union activity, the strike, and any
collective bargaining efforts. These are also relevant factors.
See Arlook In re NLRB v. S. Lichtenberg & Co., 952 F.2d
367, 373-74 (11th Cir. 1992) (noting that the history of
management resistance to unionization, various unfair labor
practices, and numerous discharges also supported interim
relief to prevent further damage). Indeed, in this case, the
Union was quite new and had not even signed its first
contract, “mak[ing] bargaining units highly susceptible to
management misconduct.” Id. at 373.
The Hospital laundry list of various arguments against
finding that the “just and proper” burden has been satisfied,
but none of these arguments are particularly strong. We
believe discussion of all of these arguments is unnecessary
given our prior discussion in this case. Nevertheless, we shall
briefly discuss some of the Hospital’s arguments.
For instance, the Hospital complains that the district court
did not adequately consider the special circumstances
surrounding a health care facility’s interest in maintaining
quality patient care. Yet in this case none of these three
employees were fired for defects in patient care. They were
fired for failing to follow certain procedures completely
unrelated to patient care issues. The district court did not
engage in any lengthy discussion about patient care interests
because the facts in this case did not merit such discussion.
24 Ahearn v. Jackson Hospital Corp. No. 02-5371
3The Hospital also complains that the affidavits should never have
been received in evidence anyway inasmuch as some of them contained
hearsay. However, this argument is placed in a footnote and the brief
provides no legal supp ort for this argum ent. W e do not be lieve the
Hospital has properly placed this issue into contention for purp oses o f this
app eal. To the extent that the Hospital seeks to incorporate by reference
its argum ents from the district court brief, this attempt fails.
See Northlan d Ins. Co. v. Stew art Title Guar. Co., 327 F.3d 448 , 452 (6th
Cir. 2003) (“The incorporation by reference of arguments made at various
stages of the proceeding in the district court does not comply with the
Federal Rules of Appellate Procedure” and therefore such arguments are
waived).
The Hospital also complains that the affidavits did not
reference the affiants’ knowledge of Sizemore and Hutton’s
discharges; they only referenced Gabbard’s discharge. Thus,
the Hospital claims, no proof had been submitted that
Sizemore and Hutton’s terminations actually created a
chilling effect on the other employees. However, this
argument ignores the fact that there were other reasons
supporting a “just and proper” finding; for instance, the
district court determined that the terminations themselves
were inherently chilling inasmuch as the reasons provided
were pretextual. The Hospital fails to persuade us on this
argument.3
The Hospital also argues that the “just and proper” burden
cannot be established for Sizemore because granting an
injunction seeks to restore the status quo, and because
Sizemore never actually held the PRN position before she was
terminated, she could only be returned to her old position.
We find this argument meritless based on our previous
discussion of the “just and proper” standard.
We conclude, therefore, that the district court did not abuse
its discretion in finding that Petitioner met the burden to show
that interim relief was just and proper.

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No. 02-5371 Ahearn v. Jackson Hospital Corp. 25
III.
For the foregoing reasons, we AFFIRM the judgment of
the district court.

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