800 River Road Operating Co. v. National Labor Relations Board , 784 F.3d 902 ( 2015 )


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  •                                 PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    Nos. 14-1571 and 14-2036
    _____________
    800 RIVER ROAD OPERATING CO LLC,
    DBA Woodcrest Health Care Center,
    Petitioner in No. 14-1571
    v.
    NATIONAL LABOR RELATIONS BOARD,
    Respondent
    1199 SEIU UNITED HEALTHCARE WORKERS EAST
    NEW JERSEY REGION,
    Intervenor
    *Amended Pursuant to Clerk
    Order entered 04/22/14
    NATIONAL LABOR RELATIONS BOARD,
    Cross-Petitioner in No. 14-2036
    v.
    800 RIVER ROAD OPERATING CO LLC,
    D/B/A Woodcrest Health Care Center,
    Cross-Respondent
    On Petition for Review and Cross-Application
    for Enforcement of an Order of
    the National Labor Relations Board
    (Case No. 22-CA-083628)
    Argued on January 23, 2015
    Before: RENDELL, SMITH and KRAUSE, Circuit Judges
    (Filed: April 29, 2015)
    Paul D. Clement, Esq.
    William R. Levi, Esq.
    Erin Murphy, Esq. (Argued)
    Bancroft PLLC
    1919 M Street, N.W.
    Suite 470
    Washington, DC 20036
    2
    Rosemary Alito, Esq.
    George P. Barbatsuly, Esq.
    K & L Gates, LLP
    One Newark Center
    Tenth Floor
    Newark, NJ 07102
    Counsel for Petitioner/Cross-Respondent 800
    River Road Operating Co, LLC
    Kira D. Vol, Esq.
    Julie B. Broido, Esq.
    Jared D. Cantor, Esq. (Argued)
    Linda Dreeben, Esq.
    Richard F. Griffin, Jr., Esq.
    Jennifer Abruzzo, Esq.
    John H. Ferguson, Esq.
    National Labor Relations Board
    Appellate Court Branch
    1099 14th Street, N.W.
    Washington, DC 20570
    Counsel for Respondent/Cross-Petitioner
    National Labor Relations Board
    OPINION
    RENDELL, Circuit Judge:
    3
    Petitioner 800 River Road Operating Co. LLC, d/b/a
    Woodcrest Health Care Center (“Woodcrest”), seeks review
    of the National Labor Relations Board (“NLRB” or “Board”)
    decision and order (“Order”), which found that Woodcrest
    violated § 8(a)(1) and (a)(3) of the National Labor Relations
    Act, 29 U.S.C. §§ 151-169 (“NLRA” or “Act”), by ommitting
    various unfair labor practices. Woodcrest Health Care Ctr.,
    360 N.L.R.B. No. 58 (Feb. 27, 2014). The NLRB cross-
    petitions for enforcement of the Order. The charging party in
    the underlying Board proceeding, 1199 SEIU United
    Healthcare Workers East New Jersey Region (“Union”),
    intervened in this appeal in support of the Order.
    In January 2012, the Union petitioned for an election
    to unionize some of Woodcrest’s employees. The election
    was held in early March 2012. The Union charged that
    certain conduct of Woodcrest before and after the election
    constituted unfair labor practices. This conduct included: (1)
    withholding of election-eligible employees’ benefits, (2)
    coercively interrogating employees, and (3) creating an
    unlawful impression of surveillance. Woodcrest lost before
    the Board and now appeals the Board’s rulings. We will
    vacate in part, affirm and enforce in part, and remand for
    further consideration in light of this opinion.
    I.    Background
    Woodcrest is a limited liability corporation engaged in
    the business of operating a rehabilitation and nursing facility.
    On January 23, 2012, the Union filed a petition for an election
    to determine whether certain employees of Woodcrest would
    unionize. The election was held on March 9, 2012, and the
    employees voted to unionize. Woodcrest filed objections to
    4
    the election, and the Union filed a charge against Woodcrest
    alleging that Woodcrest committed various unfair labor
    practices in violation of § 8(a)(1) and (a)(3). The NLRB
    issued a first amended complaint against Woodcrest, and the
    case was tried before an Administrative Law Judge (“ALJ”)
    in Newark, New Jersey.
    The ALJ found that Woodcrest committed unfair labor
    practices by withholding benefits from election-eligible
    employees and by engaging in three coercive interrogations
    of election-eligible employees, but that Woodcrest did not
    create an unlawful impression of surveillance in another
    exchange with an employee. Woodcrest, the NLRB, and the
    Union each filed exceptions to the ALJ’s decision. On
    appeal, the Board affirmed the ALJ’s decision with respect to
    the benefit withholding and interrogation claims, but it
    reversed with respect to the surveillance claim. Thus, the
    Union emerged successful on all of the charges. Woodcrest
    appeals, and the NLRB cross-appeals for enforcement of the
    Order.
    II.   Jurisdiction
    We have jurisdiction over Woodcrest’s petition for
    review pursuant to § 10(f) of the NLRA and over the NLRB’s
    cross-petition for enforcement pursuant to § 10(e). See 29
    U.S.C. § 160(e)-(f).1
    1
    On appeal, for the first time, Woodcrest asserts that the
    interrogations were protected by the First Amendment. This
    argument implicates § 8(c) of the NLRA, which incorporates
    First Amendment principles into the statutory scheme. See 29
    U.S.C. § 158(c) (“The expressing of any views, argument, or
    5
    III.   Standard of Review
    “We afford considerable deference to the Board.”
    Grane Health Care v. NLRB, 
    712 F.3d 145
    , 149 (3d Cir.
    2013). The Supreme Court “has emphasized often that the
    NLRB has the primary responsibility for developing and
    applying national labor policy.” NLRB v. Curtin Matheson
    Scientific, Inc., 
    494 U.S. 775
    , 786 (1990). Courts will uphold
    the Board’s interpretation of the NLRA “as long as it is
    opinion, or the dissemination thereof, whether in written,
    printed, graphic, or visual form, shall not constitute or be
    evidence of an unfair labor practice under any of the
    provisions of this subchapter, if such expression contains no
    threat of reprisal or force or promise of benefit.”). A § 8(c)
    challenge comes too late: it is not properly before us because
    it was not raised before the Board and therefore § 10(e)
    deprives us of jurisdiction over it. See NLRB v. FES, 
    301 F.3d 83
    , 88-89 (3d Cir. 2002); see also 29 U.S.C. § 160(e)
    (“No objection that has not been urged before the Board, its
    member, agent, or agency, shall be considered by the court,
    unless the failure or neglect to urge such objection shall be
    excused because of extraordinary circumstances.”). First
    Amendment arguments, on the other hand, might not be
    barred, because we have an obligation “to read statutes to
    avoid serious constitutional problems.” See Sandoval v.
    Reno, 
    166 F.3d 225
    , 237 (3d Cir. 1999). Even assuming we
    may entertain a separate First Amendment argument at this
    point, however, we consider such an argument immaterial to
    our ruling, as the concept of coercive versus permissible
    speech has been the focus of Woodcrest’s argument all along.
    Viewing this issue through the lens of the First Amendment,
    or § 8(c), would add little or nothing to our ruling.
    6
    rational and consistent with the Act.” 
    Id. at 787.
    Thus, in
    addressing the benefit withholding issue, we ask whether the
    Board’s rules are rational and consistent with the NRLA.
    The Supreme Court has also explained that, “if the
    Board’s application of such a rational rule is supported by
    substantial evidence on the record, courts should enforce the
    Board’s order.” Fall River Dyeing & Finishing Corp. v.
    NLRB, 
    482 U.S. 27
    , 42 (1987); see also 29 U.S.C. § 160(e).
    “‘Substantial evidence’ has been defined by the Supreme
    Court as simply ‘such relevant evidence as a reasonable mind
    might accept as adequate to support a conclusion.’”
    Hedstrom Co. v. NLRB, 
    629 F.2d 305
    , 313 (3d Cir. 1980) (en
    banc) (quoting Consolo v. Fed. Maritime Comm’n, 
    383 U.S. 607
    , 620 (1966)). We will not “displace the Board’s choice
    between two fairly conflicting views, even though the court
    would justifiably have made a different choice had the matter
    been before it de novo.” Universal Camera Corp. v. NLRB,
    
    340 U.S. 474
    , 488 (1951). In sum, our standard of review is
    “highly deferential.” United Food & Commercial Workers
    Union Local 204 v. NLRB, 
    506 F.3d 1078
    , 1083 (D.C. Cir.
    2007). Thus, our question regarding the claims of coercive
    interrogation and unlawful impression of surveillance is
    whether, under this highly deferential standard, substantial
    evidence supports the Board’s conclusions.
    IV.    Discussion
    A. Benefit Withholding
    Woodcrest was found to have violated § 8(a)(1) and
    (a)(3) of the NLRA by withholding benefits from employees
    7
    eligible to vote in the Union election. Section 8(a)(1)
    establishes that it is “an unfair labor practice for an employer
    . . . to interfere with, restrain, or coerce employees in the
    exercise of the rights guaranteed in section 157 of this title.”
    29 U.S.C. § 158(a)(1). Section 8(a)(3) establishes that it is
    “an unfair labor practice for an employer . . . 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.” 
    Id. § 158(a)(3).
    1. Background
    The parties stipulated before the ALJ as to the
    evidence relevant to the benefit withholding issue.
    HealthBridge Management, LLC (“HealthBridge”) manages
    Woodcrest, along with three other health care centers. The
    four health care centers provide a common health insurance
    plan for their employees. Effective January 1, 2012, that plan
    underwent changes resulting in reduced benefits and
    increased costs for employees.        HealthBridge received
    numerous complaints about these changes and decided to
    adopt certain improvements to the health insurance plan, as
    well as to reduce employee premiums.
    Four days before the Union election, on March 5,
    2012, Woodcrest’s administrator directed the distribution of a
    memorandum to all Woodcrest employees, except those
    eligible to vote in the March 9 election. The memorandum
    announced that improvements would be made to the health
    insurance plan for employees not eligible to vote in the
    upcoming election and that the changes would be retroactive
    to January 1, 2012.
    8
    Election-eligible employees discovered that their
    coworkers were receiving these improvements, and they
    inquired, shortly after the election, as to their eligibility for
    these benefits.       Woodcrest told the election-eligible
    employees that “we cannot negotiate your contract, your
    benefits, your insurance because right now you are in the
    critical period with the Union” and “we cannot discuss this
    matter at this time.” (J.A. 384-85.)
    The ALJ found that “[t]he evidence establishes
    [Woodcrest] took the action it did, toward certain employees,
    because they were not involved in a representation campaign
    and failed to take action toward other of its employees
    specifically because they were involved in such a campaign.”
    (J.A. 386.) Because Woodcrest would have granted the
    improvements to the election-eligible employees but for the
    election, the ALJ found that Woodcrest’s conduct violated
    § 8(a)(1) and (a)(3) of the NLRA. However, the ALJ did not
    make any finding as to Woodcrest’s motivation or its
    justification for its actions.
    The ALJ explained that, “[a]s a general rule, an
    employer, in deciding whether to grant benefits while a
    representation election is pending, should decide that question
    as it would if a union was not in the picture.” (Id.) He noted
    that the Board’s jurisprudence had created a safe harbor in
    these situations whereby an employer may “postpone such a
    wage or benefit adjustment so long as it [makes] clear to
    employees that the adjustment would occur whether or not
    they select a union, and that the sole purpose of the
    adjustment’s postponement is to avoid the appearance of
    influencing the election[’s] outcome.” (Id. (first alteration in
    original) (quoting Retlaw Broad. Co., 
    302 N.L.R.B. 381
    , 382
    9
    (1991)) (internal quotation marks omitted).) Woodcrest did
    not follow the course set forth in the safe harbor, which, the
    ALJ reasoned, left “its unit employees with a clear impression
    they were deprived of these system wide benefits because of
    their section 7 rights.”2 (Id.) In effect, the safe harbor was
    treated as a sword: Woodcrest violated the NLRA because it
    did not comply with the safe harbor.
    The Board, on appeal, “affirm[ed] the [ALJ’s]
    findings, for the reasons set forth in his decision, that
    [Woodcrest] violated Section 8(a)(1) and (3) of the Act by
    announcing and implementing a reduction in healthcare
    premiums and copays for all employees except those who
    were eligible to vote in the representation election.” (J.A.
    18.) The Board provided no discussion of its own regarding
    the relevant law.3
    2
    The ALJ’s remedy for this violation was for Woodcrest: (1)
    to cease and desist from “[i]mplementing reductions in
    healthcare premiums and copays that specifically excludes
    employees eligible to vote in the representation election”; (2)
    to affirmatively “[i]mplement the changed healthcare benefits
    for the unit employees effective January 1, 2012, and make
    whole its unit employees for losses they may have suffered as
    a result,” which includes “out-of-pocket losses, if any,
    suffered by any unit employee that had to drop health
    coverage because of the failure of [Woodcrest] to provide the
    new reduced premiums and copays,” and interest; and (3) to
    post a notice that describes Woodcrest’s obligations under the
    NLRA. (J.A. 387-90.)
    3
    The Board’s only modification to the relief awarded by the
    ALJ was to require Woodcrest “to compensate employees for
    the adverse tax consequences, if any, of receiving lump-sum
    backpay awards and to file a report with the Social Security
    10
    2. Analysis
    Section 8(a)(3) makes it “an unfair labor practice for
    an employer . . . 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.” 
    Id. § 158(a)(3)
    (emphasis added). Thus, to
    find a § 8(a)(3) violation, consideration must be given to the
    employer’s motive. The Supreme Court has held, time and
    again, that a violation of § 8(a)(3) normally turns on an
    employer’s antiunion purpose or motive. “That Congress
    intended the employer’s purpose in discriminating to be
    controlling is clear.” Radio Officers’ Union of Commercial
    Telegraphers Union, A.F.L. v. NLRB, 
    347 U.S. 17
    , 44 (1954)
    (emphasis added); see also Am. Ship Bldg. Co. v. NLRB, 
    380 U.S. 300
    , 311 (1965) (“It has long been established that a
    finding of violation under this section will normally turn on
    the employer’s motivation.”); NLRB v. Brown, 
    380 U.S. 278
    ,
    287 (1965) (“We have determined that the ‘real motive’ of
    the employer in an alleged § 8(a)(3) violation is decisive
    . . . .” (quoting Associated Press v. NLRB, 
    301 U.S. 103
    , 132
    (1937))). Congress’s intent is clear both in the plain text of
    the statute and in the legislative history. See, e.g., NLRB v.
    Great Dane Trailers, Inc., 
    388 U.S. 26
    , 33 (1967) (“The
    statutory language ‘discrimination . . . to . . . discourage’
    means that the finding of a violation normally turns on
    whether the discriminatory conduct was motivated by an
    antiunion purpose.” (alterations in original) (quoting 29
    Administration allocating the backpay awards to the
    appropriate calendar quarters for each employee.” (J.A. 18
    n.3.)
    11
    U.S.C. § 158(a)(3))); Radio Officers’ 
    Union, 347 U.S. at 44
    (describing the NLRA’s legislative history).4
    However, under certain circumstances, actual proof of
    an improper antiunion motive has been held to be
    unnecessary. Specifically, “two categories of § 8(a)(3)
    violations . . . do not require proof of motive.” NLRB v.
    Hudson Transit Lines, Inc., 
    429 F.2d 1223
    , 1229 (3d Cir.
    1970) (emphasis added). “First, if an employer’s conduct is
    ‘inherently destructive’ of important employee rights, no
    proof of anti-union motivation is needed and the Board can
    find an unfair labor practice even if the employer introduces
    evidence that his conduct was motivated by business
    considerations.” 
    Id. at 1227-28.
    “Second, if the employer’s
    conduct could have adversely affected employee rights to
    some extent[,] the employer must establish that he was
    motivated by legitimate objectives,” and, if he does not, “the
    conduct constitutes an unfair labor practice ‘without reference
    to intent.’” 
    Id. at 1228
    (quoting NLRB v. Fleetwood Trailer
    Co., 
    389 U.S. 375
    , 380 (1967)). If the employer does proffer
    a substantial and legitimate business justification for the
    different treatment, however, it can be overcome by proof of
    antiunion motive, notwithstanding an otherwise legitimate
    justification.
    4
    An antiunion motivation must be found for a § 8(a)(1)
    violation in the benefits context. See NLRB v. Hudson
    Transit Lines, Inc., 
    429 F.2d 1223
    , 1227 n.8 (3d Cir. 1970)
    (“In certain limited factual situations, such as the promise of
    benefits by an employer before a representation election, a
    showing of improper motivation has been required to
    establish a violation of § 8(a)(1).”).
    12
    In Great Dane, the Supreme Court provided a
    thorough explanation of how the Board should analyze an
    alleged violation of § 
    8(a)(3). 388 U.S. at 33-34
    . As a
    threshold matter, it must make a finding as to whether the
    employer engaged in one of two kinds of “discriminatory
    conduct which could have adversely affected employee rights
    to some extent.” 
    Id. at 34.
    That is, first, if the Board finds the
    employer’s conduct to be “‘inherently destructive’ of
    important employee rights,” then the Board may presume an
    unlawful motive. 
    Id. The employer
    then would have the
    opportunity to demonstrate “counter explanations” for its
    conduct, although the Board “may nevertheless draw an
    inference of improper motive from the conduct itself” and
    find an unfair labor practice, if doing so would “strike the
    proper balance between the asserted business justifications
    and the invasion of employee rights in light of the Act and its
    policy.” 
    Id. at 33-34.
    Second, if the Board finds instead that
    the employer’s conduct fell short of the “inherently
    destructive” category—i.e., “the adverse effect of the
    discriminatory conduct on employee rights is ‘comparatively
    slight’”—then the burden shifts to the employer to “come
    forward with evidence of legitimate and substantial business
    justifications for the conduct.” 
    Id. at 34.
    If it does not do so,
    it will be found to have violated § 8(a)(3). 
    Id. However, if
    the employer meets this burden, then the burden shifts back to
    the charging party or the NLRB to present “specific
    evidence” of the employer’s intent to discourage Union
    membership. Id.; see also 
    Brown, 380 U.S. at 287
    (describing
    when “specific evidence of intent to discourage union
    membership is necessary to establish a violation of
    § 8(a)(3)”).
    13
    We are at a loss as to why the Board’s operative test—
    tailored to the safe harbor—failed to address any of these
    issues. The Board’s failure to make a finding as to the nature
    of the effect on employee rights or the reason for, or purpose
    of, Woodcrest’s different treatment of the election-eligible
    employees cannot be reconciled with what the Supreme Court
    has instructed the ALJ and the Board to do. Instead, the
    Board treated the § 8(a)(3) (and § 8(a)(1)) inquiry as a “but
    for” test—i.e., asking only whether the employees would
    have received benefits but for the Union’s presence—rather
    than considering the nature of the discrimination or the
    employer’s purpose. See, e.g., McCormick Longmeadow
    Stone Co., 
    158 N.L.R.B. 1237
    , 1243 (1966) (“[I]n
    withholding the wage increase because of the Union’s failure
    to waive its right to file a charge, the Company deprived them
    of benefits they would have enjoyed but for their resort to
    self-organization. This . . . violates Section 8(a)(1) . . . and
    hence violates Section 8(a)(3).”); see also Noah’s Bay Area
    Bagels, LLC, 
    331 N.L.R.B. 188
    , 203 (2000); Honolulu
    Sporting Goods Co., Ltd., 
    239 N.L.R.B. 1277
    , 1295 (1979).
    This test is inconsistent with what the Board was required to
    do, and the record was not developed regarding the issues that
    should have been determinative.5
    5
    We know that Woodcrest separated out the election-eligible
    employees for different treatment because it was election
    time. However, the Board made no attempt to determine the
    reason Woodcrest decided to award benefits to some
    employees at the time and in the manner that it did.
    Woodcrest’s argument that it did not have an antiunion
    motivation would be exceedingly weak if all it could say was
    that it was following faulty legal advice. While Woodcrest
    may have felt constrained by the election, its difficulty
    14
    Given that we are specifically disapproving of the
    reasoning that the Board has repeatedly relied on in finding
    benefit discrimination to violate § 8(a)(3) (and § 8(a)(1)), we
    will remand for the Board to consider these issues in the first
    instance. See United Dairy Farmers Coop. Ass’n v. NLRB,
    
    633 F.2d 1054
    , 1069 (3d Cir. 1980). Remand is appropriate
    because we are requiring the Board to modify its longstanding
    mode of analysis in order to comply with the Supreme
    Court’s equally longstanding precedent to the contrary. See
    United States v. Kikumura, 
    918 F.2d 1084
    , 1103 n.23 (3d Cir.
    1990), overruled on other grounds by United States v. Fisher,
    
    502 F.3d 293
    (3d Cir. 2007).
    B. The Interrogations
    Section 8(a)(1) of the NLRA also prohibits an
    employer from coercively interrogating its employees—that
    is, interrogating them in such a way as to “suggest[] to the
    employees that the employer may take action against them
    because of their pro-Union sympathies.” Frito-Lay, Inc. v.
    NLRB, 
    585 F.2d 62
    , 65 (3d Cir. 1978); see also Graham
    Architectural Prods. Corp. v. NLRB, 
    697 F.2d 534
    , 537 (3d
    Cir. 1983) (“An employer’s questioning becomes coercive
    and runs afoul of section 8(a)(1) when it ‘suggests to the
    navigating the law in and of itself is not a sufficient business
    justification for its conduct. See St. Francis Fed’n of Nurses
    & Health Prof’ls v. NLRB, 
    729 F.2d 844
    , 852 (D.C. Cir.
    1984) (“The fact that Hospital management scrupulously
    avoided promising a wage increase until their legal staff gave
    the go-ahead indicates only that they received dubious legal
    advice, not that the announcement was lawful.”).
    15
    employees that the employer may take action against them
    because of their pro-Union sympathies.’” (quoting 
    Frito-Lay, 585 F.2d at 65
    )). Although “the questioning must reasonably
    have tended to coerce under the circumstances,” it need not
    have “actually had any coercive effect.”               Graham
    
    Architectural, 637 F.2d at 537-38
    . “Whether an employer’s
    actions meet that test is a question of fact for the Board and
    its determinations are conclusive if supported by substantial
    evidence.” NLRB v. Armcor Indus., Inc., 
    535 F.2d 239
    , 242
    (3d Cir. 1976). As noted above, “substantial evidence” is a
    “highly deferential” standard of review. United Food &
    Commercial Workers 
    Union, 506 F.3d at 1083
    .
    Here, three interrogations form the basis of the
    coercive interrogation charge. The participants in these three
    interrogations were: (1) certified nursing assistant Jeffrey
    Jimenez and company attorney James Monica; (2) certified
    nursing assistant Judith Dolcine and Assistant Director of
    Nursing Ansel Vijayan; and (3) licensed practical nurse
    Donna Duggar and supervisor Janet Lewis. The ALJ found
    that each of these interrogations was coercive. He explained
    that “[t]he applicable test for determining whether
    questioning an employee constitutes unlawful interrogation is
    the totality-of-the-circumstances test.” (J.A. 375.) He used
    the “Bourne factors” to assess the totality of the
    circumstances. (Id. (citing Bourne v. NLRB, 
    332 F.2d 47
    , 48
    (2d Cir. 1964)).) These factors, which we discuss below,
    include “an examination or consideration of the background
    of the interrogation; the nature of the information sought; the
    identity of the questioner; the place and method of the
    interrogation; and, the truthfulness of any reply.” (Id.)
    Applying these factors, the ALJ concluded that Woodcrest
    had engaged in coercive interrogations and ordered it to cease
    16
    and desist from “[i]nterrogating its employees about their
    union membership, activities, and sympathies” and to post a
    notice that Woodcrest “WILL NOT coercively interrogate
    you regarding your union membership, activities, and
    sympathies.” (J.A. 388, 390.)
    On appeal, the Board “agree[d] with the [ALJ], for the
    reasons he states, that [Woodcrest] violated Section 8(a)(1) of
    the Act by coercively interrogating employees both during the
    Union’s campaign to organize employees at [Woodcrest’s]
    rehabilitation and nursing facility and after the Union’s
    certification as the employees’ bargaining representative.”
    (J.A. 18.)
    The facts of the three interrogations are set forth
    below.
    1. Jimenez-Monica
    Jimenez was a vocal and visible supporter of the
    Union.     Approximately two weeks after the election,
    Jimenez’s supervisor approached him while he was caring for
    patients. The supervisor told him that the Director of Nursing
    wanted to see him in her office. He obliged and went to her
    office, but only Monica was there. Monica said he was an
    attorney for Woodcrest investigating whether any supervisors
    engaged in objectionable conduct in favor of the Union. He
    handed Jimenez a form document, which Jimenez signed.
    The form document included the following language: “[t]he
    only purpose I have in interviewing you is to investigate
    whether any objectionable conduct occurred in connection
    with the election held here at Woodcrest on March 9, 2012
    and the events leading to that election during the previous
    17
    weeks and months”; “[w]e are not interested in determining
    whether you are for or against the Union or if, or how, you
    voted in the election”; and “[w]e positively assure you that
    you have the right to join or not to join any labor organization
    without fear of reprisals.” (J.A. 377.) Monica asked Jimenez
    whether any supervisors had been involved with the Union,
    had passed out cards for the Union, or had influenced him in
    any way to change his vote. He asked if any representative
    for the Union had gone to Jimenez’s house and if Jimenez
    “knew any employees who were involved in a union or
    passing out cards.” (J.A. 376.) He also asked Jimenez if he
    had signed a card for the Union. Jimenez refused to identify
    the employees who had supported the Union. Jimenez left the
    room but then returned, clearly upset, tore up the signed form
    document, and threw it in the garbage.
    Approximately five days later, Jimenez’s supervisor
    approached him, again while he was caring for patients, and
    informed him that Monica wished to see him in a conference
    room. When Jimenez arrived, Monica told Jimenez that he
    did not believe his answers during their first meeting and
    wanted to give him a second chance to be truthful. Monica
    repeated many of the same questions, but also asked why
    Jimenez wanted to form a union.         Jimenez answered
    Monica’s questions, and the interrogation ended without
    further incident.
    2. Dolcine-Vijayan
    In the month before the election, Vijayan approached
    Dolcine while she was on duty at her workstation and asked
    to speak with her privately. Vijayan was “a high-level
    manager.” (J.A. 375.) Years prior, Vijayan had hired
    18
    Dolcine. During their meeting, Vijayan handed Dolcine a
    “don’t vote union” flyer and asked her if anyone from the
    Union had visited or telephoned her at her home. She
    answered no but said she supported the Union. Vijayan asked
    her why she needed the Union, and she responded that she
    needed someone to back her up if something happened or she
    was fired. Vijayan told her that was not going to happen.
    3. Duggar-Lewis
    Sometime before the election, Lewis, who was “not a
    top-level manager,” attended a management meeting in which
    Woodcrest’s management discussed whether certain
    employees supported the Union. (J.A. 383.) An attorney at
    the meeting mentioned that Duggar supported the Union.
    Lewis, who was friends with Duggar, was surprised and so
    decided to ask Duggar if the attorney’s statement were true.
    When asked, Duggar told Lewis that she did not support the
    Union. The conversation was amicable. Lewis then reported
    to management that Duggar did not support the Union. There
    is no evidence that Lewis told Duggar about the management
    meeting or indicated that she would report Duggar’s response.
    4. Analysis
    Given our deferential standard of review as to whether
    substantial evidence supports the Board’s finding that
    Woodcrest violated § 8(a)(1) by coercively interrogating its
    employees, we will affirm that at least one of these
    interrogations was coercive.        Specifically, substantial
    evidence supports the Board’s conclusion that the Monica-
    Jimenez interrogation was coercive.
    19
    Section 8(a)(1) provides: “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.” 29 U.S.C. § 158(a)(1). The Board
    considers the Bourne factors in determining whether, under
    the totality of the circumstances, the questioning was
    coercive. See, e.g., Rossmore House, 
    269 N.L.R.B. 1176
    ,
    1178 n.20 (1984). The Bourne factors are:
    (1) The background, i.e. is there a history of
    employer hostility and discrimination?
    (2) The nature of the information sought, e.g.
    did the interrogator appear to be seeking
    information on which to base taking action
    against individual employees?
    (3) The identity of the questioner, i.e. how high
    was he in the company hierarchy?
    (4) Place and method of interrogation, e.g. was
    employee called from work to the boss’s office?
    Was there an atmosphere of “unnatural
    formality”?
    (5) Truthfulness of the reply.
    
    Bourne, 332 F.2d at 48
    . The Bourne factors provide a
    framework, albeit not a required checklist, to use when
    assessing a purportedly coercive interrogation. Rossmore
    
    House, 269 N.L.R.B. at 1178
    n.20; see also United Servs.
    Auto. Ass’n v. NLRB, 
    387 F.3d 908
    , 916 (D.C. Cir. 2004)
    (“Requiring the Board to address each of the Bourne
    factors . . . would transform a flexible tool for organizing
    section 8(a)(1) analysis into a rigid hurdle divorced from its
    purpose of ensuring that non-threatening interrogation is not
    deemed an unfair labor practice.”). The factors are useful in
    20
    assisting the adjudicator to consider the totality of the
    circumstances, so we hold that the ALJ’s and the Board’s use
    of the Bourne factors to assess whether a given interrogation
    is coercive is rational and consistent with the NLRA.
    Here, notwithstanding that the Board found that three
    employer-employee interactions constituted unlawful
    interrogations, it takes just a single coercive interrogation to
    support the remedy ordered by the Board—namely, a cease
    and desist order and the posting of a notice that Woodcrest
    will not coercively interrogate its employees. Because the
    Order gives only a single remedy for all three violations, as
    long as at least one of the three interrogations amounted to
    coercion, we will enforce this part of the Order.
    The ALJ and the Board’s conclusion that at least one
    of the interrogations violated § 8(a)(1) is supported by
    substantial evidence. Specifically, we will not disturb the
    conclusion that the Monica-Jimenez interrogation constituted
    a coercive interrogation in violation of § 8(a)(1). The
    interrogation was initiated by Woodcrest ostensibly to
    determine whether any supervisors had engaged in improper
    conduct. Jimenez’s supervisor told him that the Director of
    Nursing wanted to see him in her office, but, when Jimenez
    entered the Director’s office, she was not there. Instead,
    Monica, a lawyer for Woodcrest, was there to conduct an
    exceedingly formal interview. Monica gave Jimenez a
    written statement that he was asked to sign. The written
    statement assured Jimenez that “[t]he only purpose I have in
    interviewing you is to investigate whether any objectionable
    conduct occurred in connection with the election held here at
    Woodcrest . . . and the events leading to that election,” and
    that “[w]e are not interested in determining whether you are
    21
    for or against the Union or if, or how, you voted in the
    election.” However, the lawyer asked him whether he had
    signed a card for the Union and whether he knew any other
    unit employees (i.e., election-eligible employees, not
    supervisors) who were involved in the Union or passing out
    cards. (J.A. 377.) These unwanted questions upset Jimenez
    so much that he returned to the office after leaving the
    meeting and “tore up the document and threw it in the
    garbage.” (J.A. 376.) Then, approximately five days later,
    Jimenez’s supervisor again approached Jimenez while he was
    working and told him to meet with the lawyer in a private
    conference room. The lawyer told him that “he did not
    believe Jimenez’[s] answers during their first exchange and
    wanted to give him a second chance.” (J.A. 377.) He asked
    Jimenez why he wanted Woodcrest to unionize and whether
    certain supervisors had campaigned for the Union.
    Woodcrest argues that the Monica-Jimenez
    interrogation was found to be coercive solely because Monica
    asked Jimenez why he wanted a union at Woodcrest. But we
    disagree. The ALJ and the Board found the interrogation to
    be coercive based on the totality of the circumstances,
    properly applying the Bourne factors. Woodcrest’s citations
    are off-point. Woodcrest cites Hughes & Hatcher, Inc. v.
    NLRB for the proposition that “[i]nterrogation of employees
    concerning their membership in the union, membership of
    fellow-employees, or the general activity of the union, absent
    interference or coercion, does not violate the Act.” 
    393 F.2d 557
    , 563 n.4 (6th Cir. 1968). However, the circumstances
    here were not so benign. Monica’s questioning of Jimenez
    regarding topics that Monica was purportedly not to inquire
    about, along with the accusation that Jimenez had not told the
    truth, crossed the line. Cf. NLRB v. Prof’l Tape Co., 
    422 F.2d 22
    989, 990 (7th Cir. 1970) (“This was not a mere inquiry to
    determine Union support. The continuous questioning of
    Hawkins and Okryesik suggested that the employees were
    being accused of lying about the union activities and in so
    doing, the Company created an atmosphere of antagonism
    toward the Union.”). Indeed, the ALJ and the Board found
    that the circumstances of Monica’s questioning, taken as a
    whole, “reasonably tend to interfere with the free exercise of
    employee rights under the Act” and were coercive. (J.A.
    374.) Given the substantial evidence standard, we are not
    inclined to disturb this conclusion.
    Moreover, the Monica-Jimenez interrogation has
    parallels to an interrogation discussed in Graham
    Architectural, which we held was unlawful. There, the
    interrogation of David Reisinger by Michael Lehr was “not
    part of an ordinary casual conversation; rather, Lehr
    specifically requested Reisinger to come to his office.”
    Graham 
    Architectural, 697 F.2d at 538
    . The supervisor also
    “indicated that he had prior knowledge” of the employee’s
    union activities. 
    Id. Furthermore, that
    interrogation involved
    two mitigating factors that are not present here: the
    individuals’ “friendship and the occurrence of the
    conversation in an open plant area.”           
    Id. Yet we,
    nevertheless, enforced the Board’s order. 
    Id. at 543.
    Here,
    Jimenez did not know Monica, and the interrogation occurred
    first in Jimenez’s boss’s office and then in a private
    conference room.
    The Monica-Jimenez interrogation was also similar to
    a second interrogation found to be unlawful in Graham
    Architectural—the interrogation of Diana Oberdick by her
    supervisor, Robert Reichard—which also involved “not a
    23
    casual inquiry into a co-worker’s feelings, but a request from
    which a reasonable inference can be drawn that it was aimed
    at securing specific information concerning the genesis of the
    union campaign and the identity of the leaders,” making it
    “not unreasonable for the Board to conclude that under these
    circumstances Reichard’s question may have conveyed to
    Oberdick the message that the Company was contemplating
    retaliation against the union activists who were responsible
    for the organizing campaign.” 
    Id. at 538-39.
    Jimenez could
    easily have assumed that Monica’s question regarding which
    unit employees were engaged in Union activities indicated
    that Woodcrest was contemplating taking some action against
    the pro-Union employees who were responsible for the
    organizing campaign. Accordingly, substantial evidence
    supports the Board’s conclusion that this interrogation was
    unlawful.6
    6
    Nothing in this opinion should be misinterpreted as
    indicating that asking employees meaningful questions,
    including probing for bias and testing credibility, during an
    internal investigation necessarily violates the NLRA. Internal
    investigations, especially when conducted by outside counsel,
    serve an important function, and, in some circumstances, an
    employer’s legitimate business justification for an interview
    in connection with an internal investigation may be
    sufficiently substantial to overcome the coercive effect of an
    interview on employees’ union activities. See, e.g., Textile
    Workers Union of Am. v. Darlington Mfg. Co., 
    380 U.S. 263
    ,
    268-69 (1965) (recognizing that a substantial business
    justification can outweigh the interference with employee’s
    rights and overcome § 8(a)(1) charges); Jeannette Corp. v.
    NLRB, 
    532 F.2d 916
    , 918 (3d Cir. 1976) (same). We need
    not engage the argument in this case, however, because no
    24
    The coerciveness of the remaining two interrogations
    is less clear, although, as stated above, Woodcrest loses if a
    single interrogation was coercive.         In particular, the
    conversation between Duggar and Lewis hardly seems
    coercive. All we know about the Lewis-Duggar conversation
    is that “sometime after February 5, but before the
    representation election,” at some unstated place, Lewis asked
    Duggar “if she was in favor of the Union,” and Duggar
    replied truthfully that she was not. (J.A. 383.) Lewis “was
    not a top-level manager,” and “she and Duggar telephoned
    each other outside of work and are friends.” (J.A. 382-83.)
    This conversation is analogous to a conversation that
    we found to be lawful in Graham Architectural—the
    interrogation of Darlene Stambaugh by Greg Nash. There, a
    supervisor “called [Stambaugh] over to his desk and asked
    her whether she was for the Union.” Graham 
    Architectural, 697 F.2d at 539
    . They then had an extended discussion about
    “the advantages and disadvantages of the Union.” 
    Id. Like here,
    “[t]he question itself contained no veiled threat or
    implication that the Company contemplated reprisals against
    union supporters.” 
    Id. Here, the
    only evidence that the ALJ
    found of coercion was that Lewis reported Duggar’s response
    to management, yet there is no indication that Lewis gave
    Duggar any reason to suspect that she would do so. Thus,
    that fact cannot be relevant to whether the “questioning must
    reasonably have tended to coerce under the circumstances.”
    
    Id. at 537-38.
    The NLRB’s only case law to the contrary is
    from another interrogation in Graham Architectural in which
    we said that, considering all the other indicia of coercion, a
    such business justification was asserted by Woodcrest before
    the Board or on appeal.
    25
    supervisor’s friendly manner is insufficient to overturn the
    Board’s finding that substantial evidence supports a finding
    of coercion. See 
    id. at 538-39.
    But here, there were no other
    indicia of coercion.
    The Vijayan-Dolcine conversation falls between these
    two extremes. Unlike the Lewis-Duggar conversation, the
    Vijayan-Dolcine conversation involved a “high-level
    manager,” who approached a unit employee “at her
    workstation while she was on duty and asked to speak with
    her privately.” (J.A. 375.) Vijayan gave Dolcine an
    antiunion flyer and “ask[ed] about her union activities
    including why she needed a union.” (J.A. 376.) Given the
    formality of the conversation, the power dynamic, and the
    fact that Vijayan made it clear to Dolcine (by giving her the
    antiunion flyer) what Vijayan’s views were and what
    Dolcine’s answer should be, the Board may well have had
    substantial evidence to support its conclusion that the
    interrogation was coercive, although we need not find more
    than one interrogation coercive for the result here.
    Because at least one interrogation was coercive, we
    will affirm and enforce this part of the Order.7
    7
    We note that the remedy imposed was imprecise. The
    Board ordered Woodcrest to cease and desist from
    “[i]nterrogating its employees about their union membership,
    activities, and sympathies” (J.A. 20, 388), but the Notice to
    Employees, which the Board required Woodcrest to post,
    states that Woodcrest “WILL NOT coercively interrogate you
    regarding your union membership, activities, and sympathies”
    (J.A. 20, 390 (emphasis added)). To the extent that the
    remedy could be misconstrued as prohibiting employee
    26
    C. Unlawful Impression of Surveillance
    Woodcrest was found to have violated § 8(a)(1) of the
    NLRA by creating an unlawful impression of surveillance.
    “Conduct which gives the impression of surveillance violates
    section 8(a)(1) if the conduct reasonably tends to interfere
    with, restrain, or coerce employees in the exercise of their
    section 7 rights.” Hanlon & Wilson Co. v. NLRB, 
    738 F.2d 606
    , 613 (3d Cir. 1984).
    1. Background
    Here, the surveillance claim relates to two interactions
    between Jimenez and Assistant Director of Recreation
    Vladamir Guerrero that occurred after the election. In the
    first interaction, Guerrero told Jimenez, “I heard your name;
    your name has been popping out a lot.” (J.A. 18.) In the
    second interaction, which occurred approximately a month
    later, Guerrero saw Jimenez in the lunch room and said, “Oh
    it’s the famous boy.” (Id.) Jimenez followed Guerrero into
    the latter’s office. Guerrero said that the Director of Nursing
    had distributed a memorandum about a newspaper article
    containing pro-Union statements by Jimenez and had
    mentioned his name several times at a management meeting.
    Crucially, Guerrero then told Jimenez, “they’re pretty pissed”
    about the article, so “watch [your] back, be careful, careful
    about what you say, you know, do what you have to do, come
    to work early, and then just, you know, do your job and go
    home.” (J.A. 380.) He said Jimenez should “tone it down a
    interrogations that are not coercive, we clarify that the cease
    and desist order applies only to coercive interrogations.
    27
    little bit” and keep his pro-Union views “under wraps.” (J.A.
    18.)
    The ALJ explained that the Board’s test for unlawful-
    impression-of-surveillance claims is “whether an employee
    would reasonably assume from the statement(s) in question
    [that] his or her union activities have been placed under
    surveillance.” (J.A. 381.) The ALJ rejected the claim of
    unlawful impression of surveillance because Jimenez was a
    “very visible and vocal supporter of the Union” and
    Guerrero’s statements do not establish that Woodcrest “was
    observing or monitoring him or his activities more closely.”
    (Id.)
    On appeal, the Board reversed under a totality of the
    circumstances test. The Board faulted the ALJ for “not
    address[ing]” Jimenez’s “uncontradicted testimony that
    Guerrero warned him to ‘watch [his] back, be careful, careful
    about what you say . . . do what you have to do, come to work
    early, and then just . . . do your job and go home,’ or
    Guerrero’s testimony that he advised Jimenez to ‘tone it down
    a little bit,’ and to keep his views about the Union ‘under
    wraps.’” (J.A. 19 (alterations in original).) These comments
    “would reasonably be understood by Jimenez as a warning
    that [Woodcrest] was moving from routine observation to
    closely monitoring the degree and extent of his union activity,
    open or not, and if he continued to engage in such activity, he
    could face reprisals.” (Id.)
    The Board’s remedy for this violation was for
    Woodcrest to cease and desist from “creating the impression
    that employees’ union and other protected concerted activities
    were under surveillance.” (J.A. 20.) The Board also
    28
    amended the required notice to employees so that it reads:
    Woodcrest “WILL NOT create the impression that your
    union and other protected concerted activities are under
    surveillance.” (Id.)
    2. Analysis
    Section 8(a)(1) prohibits employers from giving the
    “impression of surveillance” if doing so “reasonably tends to
    interfere with, restrain, or coerce employees in the exercise of
    their section 7 rights.” Hanlon & 
    Wilson, 738 F.2d at 613
    .
    “There need not be actual interference or coercion to have a
    section 8(a)(1) violation.” 
    Id. “‘The significant
    fact . . . is
    whether [the supervisor’s] statement had a reasonable
    tendency to discourage the employees in exercising their
    statutory rights by creating the impression that he had sources
    of information about their union activity.’” 
    Id. (alterations in
    original) (quoting Overnite Transp. Co., 
    254 N.L.R.B. 132
    ,
    133 (1981)).
    We have had several opportunities to consider
    unlawful impression of surveillance claims. In Hanlon &
    Wilson, we found that substantial evidence supported the
    Board’s determination that the employer had created an
    unlawful impression of surveillance in violation of § 8(a)(1)
    where an employee was told that “[w]e hear you are trying to
    get the steel workers in here.” 
    Id. In Frito-Lay,
    we found
    that substantial evidence supported the Board’s determination
    that the employer had created an unlawful impression of
    surveillance by telling an employee that “he ‘understood’
    from ‘an individual’ and that he had ‘heard . . . rumors’ that
    Hunter was starting a 
    union.” 585 F.2d at 66
    (alteration in
    original). In Landis Tool Co., Division of Litton Industries v.
    29
    NLRB, we found that substantial evidence supported the
    Board’s determination that the employer had created an
    unlawful impression of surveillance because, inter alia, a
    foreman told two employees “that he knew they had signed
    union cards and that employee Miller was a union instigator.”
    
    460 F.2d 23
    , 25 (3d Cir. 1972).
    Here, the Board emphasized Guerrero’s warning to
    Jimenez to “watch [your] back, be careful, careful about what
    you say . . . do what you have to do, come to work early, and
    then just . . . do your job and go home,” and to “tone it down
    a little bit” and to keep your views about the Union “under
    wraps.”8 (J.A. 19 (second and third alterations in original).)
    The Board also emphasized Guerrero’s comments to Jimenez
    that “I heard your name; your name has been popping out a
    lot” and that he is “the famous boy” whom management had
    named “several times at a management meeting.” (J.A. 18.)
    Together, these comments suffice to establish that this part of
    the Order is supported by substantial evidence.            The
    Guerrero-Jimenez interaction is, if anything, more indicative
    of an unlawful impression of surveillance than were the
    conversations in Hanlon & Wilson, Frito-Lay, and Landis
    Tool. In those three cases, a supervisor had told an employee
    that the company was aware of the employee’s union
    activities.     Here, not only did Guerrero indicate that
    Woodcrest was aware of Jimenez’s activities, but he actually
    told him to watch his back and keep his pro-Union views
    8
    The fact that the Board disagreed with the ALJ on this issue
    does not make the Board’s conclusion any more suspect; it
    does not alter our standard of review. See Hunter Douglas,
    Inc. v. NLRB, 
    804 F.2d 808
    , 812-13 (3d Cir. 1986).
    30
    under wraps. These statements had a reasonable tendency to
    discourage Jimenez in exercising his statutory rights by
    creating the impression that Woodcrest had sources of
    information about his union activity. See Hanlon & 
    Wilson, 738 F.2d at 613
    .
    Woodcrest argues that Guerrero’s “tone it down a little
    bit” and “watch [your] back” comments did not convey an
    unlawful impression of surveillance, but rather conveyed an
    unlawful threat, which would not support an unlawful
    impression of surveillance charge. However, it is an
    eminently reasonable inference that these comments
    conveyed an unlawful impression of surveillance. “Watch
    your back” implies that someone else is watching. Guerrero
    was not merely reporting information that Jimenez had
    voluntarily provided. Guerrero affirmatively told Jimenez
    that he should watch his back and be “careful about what you
    say.” (J.A. 19.) Moreover, he urged him to avoid being
    where he could be observed engaging in pro-Union activity—
    “just . . . do your job and go home.” (J.A. 18 (alteration in
    original).) These comments would cause a reasonable person
    to suspect that his actions are under surveillance and were
    specifically meant to encourage Jimenez to “tone . . . down”
    his activities in support of the Union. (J.A. 19.) This is the
    sort of coercion prohibited by § 8(a)(1), and the Board’s
    decision is therefore supported by substantial evidence.
    Accordingly, we will affirm and enforce this part of the
    Order.
    V.    Conclusion
    We will affirm and enforce the Order with regard to
    the Board’s conclusions that Woodcrest violated § 8(a)(1) by
    31
    coercively interrogating at least one of its employees and by
    creating an unlawful impression of surveillance. We will
    vacate the Order insofar as it concluded that Woodcrest’s
    withholding of benefits from unit employees violated
    § 8(a)(1) and (a)(3), and will remand for further consideration
    in light of this opinion.
    32
    

Document Info

Docket Number: 14-1571, 14-2036

Citation Numbers: 784 F.3d 902

Judges: Rendell, Smith, Krause

Filed Date: 4/29/2015

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (24)

National Labor Relations Board v. Great Dane Trailers, Inc. , 87 S. Ct. 1792 ( 1967 )

Textile Workers Union v. Darlington Manufacturing Co. , 85 S. Ct. 994 ( 1965 )

National Labor Relations Board v. Brown , 85 S. Ct. 980 ( 1965 )

hughes-hatcher-inc-and-its-wholly-owned-subsidiary-oppenheims-inc , 393 F.2d 557 ( 1968 )

united-dairy-farmers-cooperative-association-in-no-79-1807-v-national , 633 F.2d 1054 ( 1980 )

Bonnie Bourne, an Individual, D/B/A Bourne Co. v. National ... , 332 F.2d 47 ( 1964 )

Hanlon & Wilson Company v. National Labor Relations Board , 738 F.2d 606 ( 1984 )

Consolo v. Federal Maritime Commission , 86 S. Ct. 1018 ( 1966 )

United Svc Auto Assn v. NLRB , 387 F.3d 908 ( 2004 )

National Labor Relations Board v. Curtin Matheson ... , 110 S. Ct. 1542 ( 1990 )

National Labor Relations Board v. Fleetwood Trailer Co. , 88 S. Ct. 543 ( 1967 )

Landis Tool Company, Division of Litton Industries v. ... , 460 F.2d 23 ( 1972 )

National Labor Relations Board v. Armcor Industries, Inc. , 535 F.2d 239 ( 1976 )

United Food & Commercial Workers Union Local 204 v. ... , 506 F.3d 1078 ( 2007 )

Hedstrom Company, a Subsidiary of Brown Group, Inc. v. ... , 629 F.2d 305 ( 1980 )

Jeannette Corporation v. National Labor Relations Board , 532 F.2d 916 ( 1976 )

National Labor Relations Board v. Hudson Transit Lines, Inc. , 429 F.2d 1223 ( 1970 )

Universal Camera Corp. v. National Labor Relations Board , 71 S. Ct. 456 ( 1951 )

reynaldo-sandoval-v-janet-reno-attorney-general-doris-meissner , 166 F.3d 225 ( 1999 )

Frito-Lay, Inc. v. National Labor Relations Board , 585 F.2d 62 ( 1978 )

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