800 River Road Operating Co LL v. NLRB

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