Novato Healthcare Ctr. v. Nat'l Labor Relations Bd. , 916 F.3d 1095 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 17, 2018 Decided March 5, 2019
No. 17-1221
NOVATO HEALTHCARE CENTER,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 17-1232
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Ryan N. Parsons argued the cause for petitioner. With him
on the briefs was Kamran Mirrafati.
Rebecca J. Johnston, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Peter B. Robb, General Counsel, John W. Kyle, Deputy
General Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Jill A. Griffin, Supervisory Attorney.
Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: In 1992, Vincent Gambini taught
a master class in cross-examination.1 Trial counsel for the
National Labor Relations Board and the National Union of
Healthcare Workers apparently paid attention. In this petition
for review, Novato Healthcare Center challenges the Board’s
finding that it committed an unfair labor practice by firing four
union organizers two days before a union election. As Novato
acknowledges, its “entire case turns on whether the testimony”
of one of its supervisors “should be credited.” Reply Br. 5. But
the Board determined that the testimony should not be credited,
and trial counsel’s cross-examination of the supervisor provides
substantial evidence to support that determination. For this
reason, and because the other findings that Novato challenges
are also supported by substantial evidence, we deny Novato’s
petition for review and grant the Board’s cross-application for
enforcement.
I
Novato operates a skilled-nursing facility in California that
cares for about 170 patients. On September 16, 2015, the
National Union of Healthcare Workers filed a petition with the
National Labor Relations Board (NLRB) to represent a unit of
Novato employees. Among the employees leading the union-
organizing effort were Narvius Metellus, Rolando Bernales,
Arlene Waters Brown, and Angel Sabelino. All four attended
union meetings, collected show-of-interest signatures, wore
pro-union buttons and lanyards, distributed union regalia, and
passed out flyers promoting the union.
1
See MY COUSIN VINNY (Twentieth Century Fox 1992) (cross-
examination of Mr. Tipton); infra note 5.
3
Novato’s management undertook its own union-opposition
campaign. Although Novato supervisors did not generally work
night shifts, facility administrator Darron Treude asked
supervisors to volunteer for those shifts so they could provide
union-opposition materials to employees and answer their
questions. CPEhr, an outside consulting group that provides
employment law advice, spearheaded the union-opposition
campaign on behalf of Novato.
On October 4, 2015, ten days before the October 14-15
representation election, Novato supervisor Gay Rocha
approached employee Metellus at approximately 6:30 a.m.
Rocha asked Metellus, who was a relatively new employee, how
he planned to vote in the upcoming election. When Metellus
responded that he planned to vote in favor of the union, Rocha
told him that doing so would have implications for his pay and
that the union could potentially take a portion of his paycheck.
Metellus responded that this would not be a problem for him.
On October 6-7, Metellus, Bernales, Brown, and Sabelino
worked the night shift together at Station 4, one of four nursing
stations at the Novato facility. During that shift, another
employee, Gonzala Rodriguez, whose union views were and
remain unknown, worked at Station 1. At Novato, night-shift
employees work from 11:00 p.m. to 7:00 or 7:30 a.m.,
depending on their positions. During a shift, employees are
allowed two 10-minute rest breaks. In addition, they are
allowed one 30-minute meal break. Employees routinely sleep
during these breaks, which they are permitted to take at any
time, so long as at least one station member is available. See
Novato Healthcare Ctr., 365 N.L.R.B. No. 137, at 7 (Sept. 29,
2017) (ALJ Op.).
Novato supervisor Teresa Gilman also worked the night
shift on October 6-7, as part of Novato’s union-opposition
4
campaign. According to Gilman’s testimony at the subsequent
unfair labor practices hearing, she arrived at the Novato facility
some time after 3:50 a.m. on October 7. After completing a
number of tasks, Gilman began making the rounds of the
nursing stations, starting with Station 4.
Gilman testified that, when she arrived at Station 4, she saw
all four employees sleeping. She said she stood in front of the
employees for “several seconds to up to a minute” to see if they
would wake up. Id. at 11. According to Gilman, they did not.
Gilman then proceeded to Stations 3 and 1.2 She testified
that, at Station 1, she saw another employee, Rodriguez,
sleeping. According to Gilman, Rodriguez was sitting in a chair
outside a patient’s room with her head down on a table.
On Gilman’s second and third rounds through Stations 4, 3,
and 1, she said she saw all five employees still asleep in the
same positions in which she had last seen them. On her third
visit to Station 4, Gilman used her cell phone to take a
photograph of two of the four employees, Brown and Sabelino.
The photo shows the two with their eyes closed. Although the
photograph initially did not have a timestamp, Gilman later
produced a version with a timestamp of 4:21 a.m.
Timing, in this case, is (almost) everything. Gilman
testified that at least 15 to 20 minutes passed from the time she
first arrived at Station 4 and saw the employees sleeping, to the
time she took the photograph of the two sleeping employees. If
true, this meant that at least two of the Station 4 employees had
been sleeping considerably longer than their permitted 10-
minute breaks.
2
She did not stop at Station 2 because it was “an alarmed unit
and alarms would go off.” J.A. 443 (Gilman Test.).
5
Gilman then went on to revisit Station 1. She noticed that
Rodriguez was still sleeping and informed the charge nurse, who
woke her up. Gilman estimated that Rodriguez had been asleep
for at least 15 to 20 minutes as well. By the time Gilman
returned to Station 4 for a fourth time, all four employees there
were awake.
On the morning of October 7, Gilman sent administrator
Treude the photograph and soon thereafter informed him that the
five employees had been asleep for 15 to 20 minutes. Treude
suspended all five and initiated an investigation. Novato’s
outside counsel, Richard Albert, as well as its outside consulting
group, CPEhr, provided input regarding disciplinary options.
Specifically, in an email to Treude and CPEhr, Albert
recommended that Treude terminate all five employees.
Although Albert recognized that Rodriguez was “a bit of a
different story” because her “Charge Nurse appears to have
tolerated her sleeping,” he still recommended her termination:
“[G]iving her lesser discipline, in this situation, sends the wrong
message to the NLRB or a judge looking at this. It is possible
that [the] NLRB or judge could view her situation as being less
serious than the others, but I would rather have you take that
risk, than the risk that letting her remain employed somehow
dilutes our arguments with the other 4.” Email from Albert to
Treude, et al. (Oct. 10, 2015) (J.A. 529).
On October 12, two days before the scheduled election,
Treude fired all five employees for sleeping on duty. On
October 14 and 15, the NLRB conducted the election, which the
union won.
Thereafter, the union charged Novato with committing
unfair labor practices, and the NLRB’s General Counsel issued
a complaint. Gilman testified as recounted above. The two
Station 4 employees captured in the photograph, Brown and
6
Sabelino, acknowledged that they had slept, but said they did so
only during their permitted 10-minute breaks. Bernales testified
that, although he had rested during his allowed meal break, he
did not sleep after returning to Station 4 at 4:00 a.m. Metellus
testified that he did not sleep at all during that shift. Rodriguez,
the Station 1 employee, did not testify.
Following a multi-day hearing, the ALJ found that Novato
violated the National Labor Relations Act (NLRA) by
suspending and firing the five employees, and also violated the
Act when Rocha questioned Metellus about how he planned to
vote. 365 N.L.R.B. No. 137, at 18. The Board affirmed the
ALJ’s rulings, findings, credibility determinations, and
conclusions, with minor modifications. Id. at 1.
Novato has now filed a petition for review in this court, and
the NLRB has filed a cross-application for enforcement of its
order. Under the applicable standard of review, we must uphold
the judgment of the Board unless its findings are unsupported by
substantial evidence, or it acted arbitrarily or otherwise erred in
applying established law to the facts of the case. Spurlino
Materials, LLC v. NLRB, 805 F.3d 1131, 1136 (D.C. Cir. 2015);
Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir.
2011); see 29 U.S.C. § 160(f) (providing that the Board’s
findings of fact are “conclusive” if “supported by substantial
evidence on the record considered as a whole”).
II
We begin with Novato’s challenge to the Board’s finding
that Novato violated Section 8(a)(1) and (3) of the NLRA, 29
U.S.C. § 158(a)(1), (3), by suspending and then firing the four
employees at Station 4. It is on this issue that the information
elicited by cross-examination is important.
7
An employer violates Section 8(a)(1) and (3) by suspending
or discharging an employee for engaging in protected union
activity. NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 397-98
(1983); Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4
(1983); Tasty Baking Co. v. NLRB, 254 F.3d 114, 125 (D.C. Cir.
2001).3 The Board employs the judicially approved Wright Line
test when reviewing a claim that an employer discharged (or
took other disciplinary action against) an employee for protected
conduct. See Wright Line, 251 N.L.R.B. 1083, 1089 (1980); see
also Transp. Mgmt. Corp., 462 U.S. at 401-03 (approving the
Wright Line test); Bally’s Park Place, 646 F.3d at 935. “Under
that test, the General Counsel must first ‘make a prima facie
showing sufficient to support the inference that protected . . .
conduct was a motivating factor in the [discharge].’” Tasty
Baking, 254 F.3d at 125 (quoting TIC-The Indus. Co. Se. v.
NLRB, 126 F.3d 334, 337 (D.C. Cir. 1997)). “Once a prima facie
case has been established, the burden [of persuasion] shifts to
the company to show that it would have taken the same action
in the absence of the unlawful motive.” Id. at 126; see Bally’s
Park Place, 646 F.3d at 935.
In the proceedings below, Novato disputed the unfair labor
practice charges at both steps of the Wright Line test. With
respect to the first step, the ALJ, affirmed by the Board, readily
3
Section 7 of the NLRA guarantees employees the “right to
self-organization, to form, join, or assist labor organizations, . . . and
to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
Section 8(a)(1) provides that “[i]t shall be an unfair labor practice for
an employer . . . to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed” in Section 7. Id. § 158(a)(1). And
Section 8(a)(3) prohibits “discrimination in regard to . . . tenure of
employment . . . to . . . discourage membership in any labor
organization.” Id. § 158(a)(3).
 8
found sufficient evidence to support the inference that anti-union
animus was a motivating factor in the suspension and discharge
of the Station 4 employees. The “record show[ed],” the ALJ
recounted, that the four employees “visibly supported the union
organizing campaign by [inter alia] wearing lanyards and
buttons, passing out flyers, and getting employees to sign [up]
for a showing of interest,” and that “their actions were visible
from Treude’s office.” 365 N.L.R.B. No. 137, at 16. In light of
those facts, the ALJ rejected, as “disingenuous,” Novato’s
“claims that its supervisors were unaware of the employees’
union activity.” Id. She specifically declined to “credit
Gilman’s testimony that she did not know whether the allegedly
sleeping employees were union supporters since she did not
notice any union lanyards or pins,” because Gilman “also
testified in incredible detail as to how the employees were
positioned and claimed to have stood in front of them for some
time.” Id. In addition, the ALJ noted that the “suspensions and
discharges occurred only a couple weeks after the filing of the
representation petition and only 1 week prior to the
representation election.” Id. And she also noted that Novato’s
animus was “demonstrated by its contemporaneous 8(a)(1)
violation[]”: Rocha’s unlawful interrogation of Metellus about
his preference in the representation election. Id.
The ALJ found additional support for the inference of
animus and discriminatory motivation in the fact that Novato
“acted disparately”: “No other employees had been suspended
and discharged for the same or similar allegations.” Id. at 17.
She observed that, “[i]n a similar situation in 2009 where an
employee allegedly slept on duty, [Novato] did not discipline
this employee even though there too was a picture of the
sleeping employee.” Id. The ALJ further noted that, although
just one week “prior to the events at issue in [t]his matter, one
of [Novato’s] supervisors also reported employees sleeping
during the night shift[,] . . . Treude failed to investigate or follow
9
up on this allegation.” Id. Instead, “Treude singularly focused
on Metellus, Bernales, Brown, and Sabelino and one can only
conclude it was due to their union activity.” Id.
In this court, Novato does “not contest the Board’s finding
of an unlawful motivation in discharging the employees at
issue.” Reply Br. 2; Oral Arg. at 1:50-2:33. Rather, Novato’s
sole contention is that it met its burden of proof under the
second step of the Wright Line test by proving “that it would
have taken the same action absent the improper motive.” Reply
Br. 4. As it argued below, Novato maintains here that it would
have terminated the four regardless of their union support
because of the “brazen” nature of their conduct in sleeping on
duty. 365 N.L.R.B. No. 137, at 17 (ALJ Op.).
The ALJ, affirmed by the Board, rejected Novato’s Wright
Line defense. Id.; see id. at 1 nn. 1, 2 (Board Op.). She rejected
Treude’s testimony in its entirety for multiple reasons, including
his demeanor, id. at 5 (ALJ Op.) (“evasive[], . . . vague and
contradictory”), and his disparate treatment of earlier sleeping-
on-the-job claims, id. at 17. As discussed below, she
specifically discredited Gilman’s testimony that she saw the four
employees sleeping on duty. Id. at 5. Instead, she credited in its
entirety the testimony of Brown, and in relevant part the
testimony of Sabelino, both of whom acknowledged that they
had slept but said they did so only during their permitted
10-minute breaks. Id.4 In addition, the ALJ credited the
testimony of Bernales, who testified that the only rest he took
was during his permitted 30-minute meal break prior to 4:00
a.m., and of Metellus, who testified that he did not sleep at all
during the shift. Id. at 5-6.
4
The ALJ further credited Brown’s testimony that she ensured
that Metellus and Bernales were both awake and working when she
went to sleep on her break. 365 N.L.R.B. No. 137, at 5.
10
Novato acknowledges that its Step 2 Wright Line argument
-- that it would have discharged the four employees regardless
of any anti-union motive because they were sleeping on duty
well past their permitted rest periods -- turns entirely on
“whether the testimony of Gilman should be credited.” Reply
Br. 5; Oral Arg. at 2:40-3:00. Novato’s success therefore
depends on persuading us that the ALJ’s conclusions about
Gilman’s credibility were unsupported. And that presents
Novato with a difficult task because “we do not reverse the
Board’s adoption of an ALJ’s credibility determinations unless
. . . those determinations are ‘hopelessly incredible,’
‘self-contradictory,’ or ‘patently unsupportable.’” Shamrock
Foods Co. v. NLRB, 346 F.3d 1130, 1134 (D.C. Cir. 2003)
(quoting Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 28
(D.C. Cir. 1998)).
Novato insists that it is up to this difficult task because
photographic evidence “fully corroborated” Gilman’s testimony
“that the Unit 4 employees were sleeping for 20 minutes.”
Reply Br. 6, 5. That itself is an overstatement of Gilman’s
actual testimony, which was that the employees were sleeping
“at least 15 to 20 minutes.” J.A. 456 (Gilman Test.). Be that as
it may, Novato’s argument here is in line with the position it
took before the ALJ:
Immediately after the October 7 incident, Gilman
reported that she began her rounding at approximately
4:00 am on October 7, and took the photo of Brown
and Sabelino somewhere around 15-20 minutes later.
At the time she made these representations, the photo
Gilman had taken had no time stamp on it. . . . Once
she [downloaded a software update on her smart
phone], a time stamp appeared indicating that the
picture was taken at 4:21 am . . . . This indisputable
time stamp evidence is totally consistent with Gilman’s
11
testimony as well as her prior statements about the
events of October 7 -- she arrived on Unit 4 at or
slightly after 4:00 am, and took the photo at least
15-20 minutes later.
Novato Post-Hearing Br. 15 (emphasis added). Like the ALJ,
we will assume that the 4:21 a.m. timestamp was accurate,
notwithstanding some doubts in that regard. See 365 N.L.R.B.
No. 137, at 5, 12 n.27.
And here is where the lesson Vinny Gambini taught comes
into play. A key issue in the murder trial of Vinny’s cousin,
Bill, was how many minutes had passed between the time
witness Sam Tipton saw Bill enter the Sac-O-Suds convenience
store and the time he heard a gunshot. On direct examination,
Tipton testified that he was sure only five minutes had passed
because he saw Bill go into the store as he (Tipton) started
making breakfast, and the shot rang out just as his breakfast was
ready to eat. On cross-examination, Vinny elicited Tipton’s
breakfast-making process. By the end of the cross, it was clear
that Tipton could not have cooked his breakfast of eggs and grits
in just five minutes.5
5
The cross-examination proceeded as follows:
Q. Well, how much time was they in the store?
A. Five minutes.
Q. Five minutes? Are you sure, did you look at your watch?
A. No.
Q. Oh, oh, I’m sorry, you testified earlier that the boys went
into the store, and you had just begun to make breakfast, you
were just ready to eat, and you heard a gunshot. . . . So
obviously it takes you five minutes to make breakfast.
A. That’s right. . . .
Q. Do you remember what you had?
A. Eggs and grits.
12
So, too, here. Gilman testified that the only time she saw a
clock on the morning of October 7 was when she stopped at a
stop sign, three blocks from work, and noticed that her car’s
clock showed it was 3:50 a.m. On cross-examination, she
initially claimed that it took her only 5 to 10 minutes to get from
that stop sign to Station 4, where she said she first encountered
the four sleeping employees. J.A. 490 (Gilman Test.). If
Gilman really had reached Station 4 in just 5 to 10 minutes, that
would indeed have put her in a position to observe the sleeping
employees at Station 4 at (or before) 4:00 a.m. -- just as
Novato’s brief claimed. And if we further assume the accuracy
of the 4:21 a.m. timestamp on the photograph Gilman took the
last time she saw them sleeping, that would establish that at least
Q. Eggs and grits. I like grits too. How do you cook your
grits? You like ‘em regular, creamy, or al dente?
A. Just regular, I guess.
Q. Regular. Instant grits?
A. No self-respecting Southerner uses instant grits. I take
pride in my grits.
Q. So, Mr. Tipton, how could it take you five minutes to cook
your grits, when it takes the entire grit-eating world twenty
minutes?
A. I don’t know. I’m a fast cook I guess.
Q. I’m sorry . . . . Are we to believe that boiling water soaks
into a grit faster in your kitchen than on any place on the face
of the earth?
A. I don’t know.
Q. Well, perhaps the laws of physics cease to exist on your
stove? Were these magic grits? . . .
Q. Are you sure about that five minutes? . . .
A. I may have been mistaken.
American Rhetoric: Movie Speech, “My Cousin Vinny (1992),”
https://www.americanrhetoric.com/MovieSpeeches/moviespeechmy
cousinvinny3.html (video clip).
13
the two employees in the photo had been sleeping for at least 20
minutes -- again, just as Novato claimed.
The problem with this timeline is the sheer number of tasks
Gilman claimed to have completed between stopping at the stop
sign at 3:50 a.m. and arriving at Station 4 just 5 to 10 minutes
later. During NLRB counsel’s cross-examination of Gilman,
counsel drew out the following list of activities Gilman said she
had completed during that period:
- driven three more blocks to the Novato facility,
stopping at another stop sign along the way;
- parked her car and went into the facility;
- walked to her office, where she logged on to her
computer and checked her emails;
- walked to the facility’s kitchen, where she checked
the temperature logs for a refrigerator, for a walk-in
refrigerator, and for a walk-in freezer; and checked the
labels and dates of the items in the refrigerators;6
- walked to and through the break room, where she
used the restroom and then collected Novato union-
opposition campaign flyers, on which someone had
written “derogatory stuff”;
- gone back to her office and read the flyers;
- walked down the hallway toward Station 4, peeking
in rooms along the way; and
6
During her direct examination, Gilman testified that she had
also opened the oven doors, inspected the stove, and tidied up. See
J.A. 427 (Gilman Test.).
14
- arrived at Station 4 for the first time, where she saw
the sleeping employees.
See Gilman Test. Tr. 804-15 (cross-examination by Marta
Novoa, NLRB attorney).
When the union’s attorney took up the tag-team match
during her own shot at cross-examination, she hammered the
point home:
Q. So it’s your testimony that it only took [10] minutes
to drive from the 7-Eleven [near the first stop sign],
park, to go into your office, to log onto your computer,
to check your email, go to the bathroom, use the
restroom, cleanup the break room a little bit of these
flyers, and go through all the procedures that [you]
went through . . . in your kitchen.
A. . . . [S]o roughly I would still say about five -- it
wasn’t that long, you know. It wasn’t that long. . . .
Q. So I’m trying to figure out from that time, driving,
going through another stop sign, parking, getting in,
unlocking your door, putting everything down,
everything you did between there and when you first
saw people sleeping, are you sure it was only ten
minutes or less? Or could it have been 15 or 20
minutes?
A. No, it could not have been 15 or 20 minutes . . . .
Q. Isn’t it true you’re just not sure how long it took you
to get from the stop sign to [] Station 4 . . . ?
A. Well, to me it seemed like everything that I was
doing, it seemed like about 10 minutes had passed.
Q. But you never looked at a clock to make sure that’s
correct?
15
A. Correct.
J.A. 490-92 (cross-examination by Heather Conger, union
attorney).
In light of the sheer “number of functions” Gilman “claimed
to perform[,] . . . all within a very short time period,” the ALJ
regarded her testimony as “simply . . . implausible.” 365
N.L.R.B. No. 137, at 5. Moreover, Gilman’s testimony about
how long the tasks had taken in the aggregate was rendered even
more implausible by counsel’s further cross-examination about
how long some of them had taken individually. In response to
counsel’s questions, Gilman testified that: “from the stop sign to
[the facility] that’s three or four minutes”; “[i]t takes three to
four minutes to log onto my computer”; “[w]hat I did in my
kitchen took a few minutes”; “I went over to the break room,
[which] took three or four minutes”; and then “I left and went
back to my office [put down the flyers, and looked at them
again] just briefly.” J.A. 490-91 (Gilman Test.); Gilman Test.
Tr. 814-15. By Gilman’s own account, then, those activities
alone took about 15 minutes. Given the additional,
unaccounted-for activities that Gilman also had to complete, the
ALJ reasonably concluded that Gilman’s aggregate time
estimate was “unlikely and unbelievable due to the length of
time she allocated to each task she completed” before first
encountering the sleeping employees. 365 N.L.R.B. No. 137, at
11 n.25.
Nor was Gilman’s implausible timeline testimony the only
problem the ALJ had with her credibility. So, too, was Gilman’s
failure to photograph the other two employees who, she claimed,
were also asleep at the same time at the same nursing station.
So, too, was her failure to attempt to wake any of the four
employees, or to seek immediate assistance from other
supervisors, despite Novato’s contention that the employees had
to be fired because they had put patients dangerously at risk by
16
sleeping on the job. See id. at 5. So, too, was her assertion that
she did not know the four were union adherents because she did
not notice that they all wore pro-union lanyards and buttons --
despite her claim that she could “recall significant details on
how the employees slept” because she got within “arm’s reach”
of them. Id. at 5, 11. And so, too, was Gilman’s denial that she
herself wore an anti-union lanyard that morning, a denial she
later had to withdraw. Id. at 5, 8 (admitting that she, along with
other supervisors, wore lanyards urging employees, in capital
letters, to “KEEP YOUR VOICE VOTE NO”).
In the end, the ALJ simply could “not find [Gilman’s]
testimony credible and reject[ed] her version of events
completely.” Id. at 5. The Board saw “no basis for reversing”
that finding, see id. at 1 n.1, and neither do we. Novato proffers
no other evidence that Brown and Sabelino were sleeping longer
than their permitted break times and no other evidence that
Metellus and Bernales were sleeping at all. Given the absence
of such evidence, combined with the contrary testimony that the
ALJ reasonably credited, we find nothing unreasonable in the
Board’s conclusion that Novato failed to meet its burden of
showing it would have fired the four employees notwithstanding
its anti-union animus.
III
Novato also disputes the Board’s determination that it fired
Rodriguez, the Station 1 employee, in violation of Section
8(a)(1) and (3) of the NLRA. Novato emphasizes the “total lack
of evidence” that Rodriguez did not sleep or that she was a
union supporter. Novato Br. 21. This argument fails because
the Board did not rely on such evidence to conclude that Novato
committed an unfair labor practice by firing Rodriguez. Rather,
the ALJ found, and the Board affirmed, that Novato violated the
Act by using Rodriguez as a “pawn in an unlawful design.” 365
17
N.L.R.B. No. 137, at 18 (quoting Corliss Res., Inc., 362
N.L.R.B. No. 21, at 4 (2015)).
Although Rodriguez’s union views were unknown, the ALJ
concluded that Novato fired her along with the Station 4
employees “for fear of diluting its argument against the other
discriminatees” and to “‘cover’ its unlawful suspension and
termination of the other 4 employees.” Id. As the Board has
long held, “an employer’s discharge of uncommitted, neutral, or
inactive employees in order to ‘cover’ or to facilitate
discriminatory conduct against a targeted union-supporting
employee or to discourage employee support for the union is
violative of Section 8(a)(3) of the Act.” Dawson Carbide
Indus., Inc., 273 N.L.R.B. 382, 389 (1984); see Metro-West
Ambulance Servs., Inc., 360 N.L.R.B. 1029, 1056 (2014); Bay
Corrugated Container, Inc., 310 N.L.R.B. 450, 451 (1993); see
also Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 255-56 (4th Cir.
1997).
Here, substantial evidence supports the Board’s conclusion
that Rodriguez was discharged alongside the Station 4
employees in order to provide cover for Novato’s discriminatory
conduct toward those union supporters. The email from
Novato’s outside counsel to administrator Treude all but
admitted as much. Counsel acknowledged that Rodriguez was
“a bit of a different story” from the other four because her
“Charge Nurse appears to have tolerated her sleeping.” Email
from Albert to Treude, et al. (Oct. 10, 2015) (J.A. 529).
Nonetheless, he suggested that Treude fire her to avoid
“dilut[ing] [Novato’s] arguments with the other 4.” Id. And as
the ALJ noted, “[d]espite claiming that he did not read [the]
email recommendations, Treude exactly followed [the] advice.”
365 N.L.R.B. No. 137, at 18; see id. at 13 n.39.
18
IV
Finally, Novato challenges the Board’s finding that
supervisor Gay Rocha unlawfully interrogated employee
Narvius Metellus in violation of Section 8(a)(1) of the NLRA.
On Sunday, October 4, 2015, ten days before the election,
Rocha “came into the facility early as part of [Novato’s]
opposition campaign.” 365 N.L.R.B. No. 137, at 9 (ALJ Op.).
Metellus testified that Rocha came up to him while he was
standing near a vending machine and asked “how he planned to
vote in the upcoming union election.” Id. When Metellus said
he planned to vote in favor of the union, Rocha told him that
doing so would have implications for his pay and that the union
could possibly take part of his paycheck. Id.7
“The questioning of an employee about union activities or
sympathies constitutes unlawful interrogation ‘if, under all the
circumstances, it reasonably tends to restrain, coerce, or
interfere with rights guaranteed by the Act.’” Shamrock Foods,
346 F.3d at 1137 (quoting Perdue Farms, Inc. v. NLRB, 144
F.3d 830, 835 (D.C. Cir. 1998)). In examining the totality of the
circumstances, the Board considers such factors as: the nature
of the information sought; the seniority of the questioner in the
employer’s hierarchy; the place and manner of the conversation,
including whether it took place during a disputed union
campaign and whether the employee was alone; the truthfulness
of the employee’s reply; and whether the questioner offered any
legitimate purpose for his question or assurance against reprisal.
7
In Rocha’s testimony before the ALJ, she denied speaking to
Metellus about his position regarding the union. The ALJ found that
“Rocha cannot be believed” and credited Metellus’s version of events.
365 N.L.R.B. No. 137, at 9. Before this court, Novato does not
dispute Metellus’s recounting of his interaction with Rocha.
19
See, e.g., Shamrock Foods, 346 F.3d at 1137; Perdue Farms,
144 F.3d at 835-36; Rossmore House, 269 N.L.R.B. 1176, 1178
n.20 (1984) (citing Bourne v. NLRB, 332 F.2d 47 (2d Cir.
1964)). The test is an objective one; proof of actual coercion is
not required. See United Servs. Auto. Ass’n v. NLRB, 387 F.3d
908, 913 (D.C. Cir. 2004).
In this case, the ALJ found that Rocha’s questioning about
Metellus’s union views “would have a reasonable tendency to
interfere with an employee’s Section 7 rights.” 365 N.L.R.B.
No. 137, at 15; see supra note 3 (quoting Section 7, 29 U.S.C.
§ 157). Among the factors the judge cited for this conclusion
were: Rocha questioned Metellus ten days before the
representation election; “Metellus recognized Rocha as a
supervisor at the facility”; Novato “ran an obvious union
opposition campaign around this time period”; and “Rocha
offered no explanation for her question nor did she provide
assurances against reprisal to Metellus.” 365 N.L.R.B. No. 137,
at 15. In affirming the ALJ’s finding, the Board added that
“questions like Rocha’s -- going specifically to how an
employee himself intends to vote -- have a uniquely coercive
tendency,” and that “Rocha’s position as a high-level
management official with no regular working relationship with
Metellus compounded the coercive tendency of her question.”
Id. at 2. Moreover, “Rocha’s subsequent comments that voting
for the Union would have implications on Metellus’s pay and
that the Union could possibly take part of his paycheck clearly
communicated [Novato’s] preference that Metellus should vote
against representation.” Id.
“Recognizing the Board’s ‘competence in the first instance
to judge the impact of utterances made in the context of the
employer-employee relationship,’” Shamrock Foods, 346 F.3d
at 1137 (citations omitted), we uphold as reasonable its
conclusion that Rocha’s questioning was sufficiently coercive to
20
violate the Act. As noted above, the factors cited by the Board
are among those upon which it has traditionally relied and
support the conclusion here that the interrogation “reasonably
tend[ed] to restrain, coerce, or interfere with rights guaranteed
by the Act.” Id. (citation omitted).
Novato further maintains that the Board’s finding of an
unlawful interrogation violates Novato’s free-speech rights
under the First Amendment and Section 8(c) of the NLRA. See
29 U.S.C. § 158(c) (“The expressing of any views . . . shall not
constitute or be evidence of an unfair labor practice . . . if such
expression contains no threat of reprisal or force or promise of
benefit.”). Rocha, it insists, simply exercised Novato’s First
Amendment rights in asking how Metellus planned to vote and
merely spoke the truth when she informed him that the union
could deduct dues from his paychecks. Novato Br. 25-26.
Novato concedes that it did not raise this objection before
the Board and that Section 10(e) of the NLRA deprives this
court of jurisdiction to hear any “objection that has not been
urged before the Board,” barring “extraordinary circumstances.”
29 U.S.C. § 160(e). Novato proffers no circumstances,
“extraordinary” or otherwise, to excuse its forfeiture. Instead,
it insists that free-speech arguments cannot be forfeited and that
Section 10(e) simply does not apply to First Amendment
arguments. Oral Arg. 7:50; Reply Br. 12-13.
The text of Section 10(e) makes no exception for
free-speech objections, whether grounded in the First
Amendment or Section 8(c). Nor do this circuit’s decisions.
See Ampersand Publ’g, LLC v. NLRB, No. 15-1074, 2017 WL
1314946, at *2 (D.C. Cir. Mar. 3, 2017) (holding that the “court
lacks jurisdiction to consider Ampersand’s broad First
Amendment argument” because of Section 10(e)’s jurisdictional
bar); Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 545 (D.C.
21
Cir. 2006) (declining to hear an employer’s Section 8(c)
argument because it had “not been raised before the Board”).
Nor has Novato cited a single case to support its position.
Accordingly, we do not consider this objection.
V
For the foregoing reasons, we deny Novato’s petition for
review and grant the Board’s cross-application for enforcement.
So ordered.