NOVA Southeastern University v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2015 Decided December 11, 2015
No. 11-1297
NOVA SOUTHEASTERN UNIVERSITY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 11-1331
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
James M. Walters argued the cause for petitioner. With him
on the briefs was Charles S. Caulkins.
Amy H. Ginn, Attorney, National Labor Relations Board,
argued the cause for respondent. On the brief were John H.
Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, and Robert J. Englehart,
Supervisory Attorney.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and GINSBURG, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Nova Southeastern University
petitions for review of the decision and order of the National
Labor Relations Board, 357 N.L.R.B. No. 74 (2011), finding
that it violated § 8(a)(1) of the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 158(a)(1), by maintaining an overly
broad no-solicitation rule on its Fort Lauderdale campus;
enforcing that rule against an employee of its onsite contractor
and disciplining that employee through its contractor; and
making coercive statements to a laid-off employee of that
contractor who was seeking employment with Nova’s new
contractor. We deny the petition for review and grant the
Board’s cross-application for enforcement of its order.
I.
Nova Southeastern University is a private educational
institution with an approximately 300-acre campus in Fort
Lauderdale, Florida. In 2000, Nova hired UNICCO Service
Company to provide maintenance, landscaping, and janitorial
services throughout its campus. UNICCO employees worked
out of the physical plant/central services building where they
reported for their shifts. Nova’s contract required UNICCO
employees to undergo pre-employment drug testing and a
background check that included a security report from Nova’s
public safety department. The contract also required UNICCO
to enforce Nova’s policies, report policy violations to Nova, and
ensure UNICCO’s employees “abide by all rules, regulations
and policies of [Nova] . . . .”
In 2006, UNICCO employee Steve McGonigle arrived on
campus before his shift began and distributed handbills to his
coworkers in the parking lot adjacent to the central services
building. After five or ten minutes, a Nova public safety officer
3
told him to stop, referring to Nova’s no-solicitation rule
prohibiting any solicitation on campus without prior
authorization. McGonigle stated that he had the right to handbill
during non-working hours, but complied and went into the
central services building. After telling his UNICCO coworkers
about what had just happened and Nova’s no-solicitation rule,
McGonigle went to Nova’s public safety department building to
complain that his right to handbill had been violated. There,
several Nova officials reiterated that Nova’s no-solicitation rule
prohibited him from soliciting on campus absent Nova’s
advance permission.
Tony Todaro, who at that time was employed by UNICCO
as the Director of Physical Plant on Nova’s campus, was
informed by Nova of McGonigle’s handbilling. According to
McGonigle, whose testimony was credited by the
Administrative Law Judge (“ALJ”), Todaro called McGonigle
into his office two days after the incident and issued him a
written disciplinary notice for “handing out (solicitation and
distribution) of unauthorized materials at the job location”
without prior permission from Nova and UNICCO. Progressive
Discipline Notice 1 (Aug. 24, 2006). Todaro indicated that the
practice was to stop immediately.
Nova terminated its contract with UNICCO on February 17,
2007, and replaced UNICCO with several successor contractors.
UNICCO laid off its employees who had been working on the
Nova campus. Some, like Todaro and Thai Nguyen, another
supervisor, were hired by Nova to perform work similar to what
they had been doing as UNICCO employees.
The next working day after the layoffs, Jose Sanchez, a
former UNICCO employee who had worked at Nova’s campus,
approached Todaro on campus to seek his assistance in being
hired by one of Nova’s new contractors. According to Sanchez,
4
whose testimony the ALJ credited, Todaro, now a Nova
supervisor, asked Sanchez whether he had supported the union
and suggested that he might be able to get paid by the union for
picketing. He told Sanchez that he could not help him at that
time, but to call him in a couple of months.
Based on charges filed by the Service Employees
International Union, Local 11, the General Counsel charged, as
relevant, that Nova violated NLRA § 8(a)(1) by maintaining and
enforcing an overly broad no-solicitation rule, interfering with
the distribution of union literature by an off-duty contractor
employee in a non-working area, and issuing a disciplinary
warning to that employee. The complaint also charged that
Nova violated section 8(a)(1) by interrogating a laid off
contractor employee about his union activities and implicitly
threatening that laid off employees would not be hired for work
on campus because of their union activities. Following an
evidentiary hearing, the ALJ found Nova had violated section
8(a)(1) as alleged. Nova filed exceptions. The Board affirmed
the ALJ’s findings with respect to violations related to the off-
duty contractor employee’s handbilling and discipline. It
modified the ALJ’s proposed order with regard to the
interrogation of the laid off contractor employee, finding only
that Nova violated section 8(a)(1) by making coercive
statements linking the employee’s union support to his lack of
employment. The Board ordered Nova to cease and desist from
interfering with its employees’ rights under NLRA § 7 in
violation of section 8(a)(1); to rescind its no-solicitation rule;
and to remove from the handbilling contractor employee’s
personnel files any reference to the unlawful discipline, ask
UNICCO to do the same, and notify that employee in writing
that it has done so and that the discipline will not be used against
him in any way. Nova was also required to post a remedial
notice.
5
Nova petitioned for review, the Board cross-applied for
enforcement, and the cases were consolidated. The court held
the cases in abeyance in part pending review of the Board’s
decision on remand in New York New York, LLC d/b/a New York
New York Hotel & Casino, 356 N.L.R.B. No. 119 (2011)
(hereafter “NYNY”) and, because one Member of the Board was
a recess appointee, pending the Supreme Court’s decision in
NLRB v. Noel Canning, 573 U.S. __ , 134 S. Ct. 2550 (2014).
II.
By way of overview, we note that much of Nova’s petition
for review centers on the Board’s application of its decision in
NYNY. There, the Board balanced the employee’s rights under
section 7 and the employer’s rights to control the use of its
premises and manage its business and property, and concluded
that onsite contractor employees have the right under section 7
to distribute union-related handbills during nonwork time and in
nonwork areas, unless the property owner can demonstrate that
the handbilling significantly interferes with its use of the
property or justifies its prohibition by other legitimate business
reasons. The court approved the Board’s determination,
concluding that the NLRA and Supreme Court precedent
granted the Board discretion over how to treat onsite contractor
employees for these purposes. New York New York v. NLRB,
676 F.3d 193, 196 (D.C. Cir. 2012). Consequently, the Board
did not commit reversible error in deeming NYNY controlling.
Several of Nova’s other contentions falter due to its failure
to acknowledge the limits of this court’s jurisdiction when it did
not adhere to the requirements for filing exceptions to the ALJ’s
decision. Under NLRA § 10(e), “[n]o objection that has not
been urged before the Board . . . shall be considered by the
court, unless the failure . . . to urge such objection shall be
excused because of extraordinary circumstances.” 29 U.S.C.
6
§ 160(e). And it is long established that where a petitioner
objects to a finding on an issue first raised in the Board’s
decision, a petitioner must file for reconsideration to afford the
Board an opportunity to correct the error, if any. See Woelke &
Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982). The
Board’s rules require, in turn, that any objection must “set forth
specifically the questions . . . to which exception is taken[,]” 29
C.F.R. § 102.46(b)(1) (2007), and “present[ ] clearly the points
of fact and law relied on[,]” id. § 102.46(c)(3). See Spectrum
Health–Kent Cmty. Campus v. NLRB, 647 F.3d 341, 348-49
(D.C. Cir. 2011); 29 C.F.R. § 102.46(b)(2). Application of
section 10(e) is mandatory. Exxel/Atmos, Inc. v. NLRB, 147
F.3d 972, 978 (D.C. Cir. 1998).
Finally, in urging its petition be granted, Nova does not
contest that the Board has “primary responsibility for developing
and applying national labor policy.” NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 786 (1990); see Beth Israel Hosp.
v. NLRB, 437 U.S. 483, 501 (1978). Nor that our review of the
Board’s decision and order is deferential. See Int’l Transp.
Serv., Inc. v. NLRB, 449 F.3d 160, 163 (D.C. Cir. 2006). To the
extent Nova challenges the Board’s factual findings, it
acknowledges that these findings are conclusive if supported by
substantial evidence on the record as a whole. See Universal
Camera Corp. v. NLRB, 340 U.S. 474, 477, 488 (1951); 29
U.S.C. § 160(e). Nova does, however, challenge the Board’s
extension of its precedent in finding Nova violated section
8(a)(1) as a result of coercive statements made by its employee
to a former contractor employee who was seeking employment
with Nova’s new contractor.
A.
The Board is entitled to summary enforcement of the
uncontested portion of its order regarding the no-solicitation rule
as applied to Nova’s own employees. See N.Y. Rehab. Care
7
Mgmt. v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007). Nova
failed to file a proper exception to the ALJ’s finding that Nova’s
no-solicitation rule was unlawful as applied to its own
employees and it does not show that special circumstances
justify this failure. Its exceptions do no more than state a
generalized objection to the ALJ’s analysis without providing
the detail required by the Board’s rules or otherwise putting the
Board on notice of the specific grounds for its objections.
Excepting generally is insufficient. See 29 C.F.R. § 102.46.
Therefore, the court lacks jurisdiction to review this part of the
Board’s order. NLRA § 10(e), 29 U.S.C. § 160(e); Woelke &
Romero Framing, Inc., 456 U.S. at 665.
B.
The Board reasonably found that Nova violated section
8(a)(1) by prohibiting McGonigle from engaging in handbilling
on a campus parking lot. Nova maintains that, under Lechmere,
Inc. v. NLRB, 502 U.S. 527 (1992), and NLRB v. Babcock &
Wilcox Co., 351 U.S. 105 (1956), UNICCO onsite contractor
employees are analogous to non-employee union organizers who
are not entitled to solicit on its property. In NYNY, however, the
Board emphasized that, in view of the broad definition of
“employee” in NLRA § 2(3), 29 U.S.C. § 152(3), “the precise
terms of the [NLRA’s] prohibitions [in NLRA § 8(a)(1)] . . .
make clear that an employer’s action toward the employees of
other employers can constitute an unfair labor practice.” 356
N.L.R.B. No. 119 at 6. The Board rejected the view that an
onsite contractor employee’s section 7 rights depended on the
contractor having a “leasehold interest or fixed place of work
within the owner’s property,” id. at 9, referencing as an example
contractors serving as janitors throughout an office building
whose section 7 rights would otherwise be diminished. In
NYNY, as here, the expressive activity occurred at the “very
threshold of the employees’ own workplace[,]” namely at the
entrances to the casino and two onsite restaurants where the
8
contractor employees worked. Id. at 13. The Board concluded
that the section 7 rights of onsite contractor employees “are
much more closely aligned to those of NYNY’s own employees
. . . than . . . the interests of the union organizers at issue in
Lechmere and Babcock & Wilcox. . . . They were not strangers
or outsiders to NYNY’s property; rather, they worked there
regularly, for an employer with a close economic relationship to
NYNY. Finally, they sought access to locations that were
uniquely suited to the effective exercise of their statutory
rights.” Id.
So, too, McGonigle. UNICCO had a close economic
relationship with Nova during the term of their contract and its
employees were regularly employed on Nova’s campus.
Although UNICCO did not have a leasehold interest like the
contractor in NYNY, the handbilling occurred on campus as “no
other location . . . could be more appropriately understood as
[UNICCO employees’] workplace.” 357 N.L.R.B. No. 74 at 2.
Under NYNY, then, McGonigle’s handbilling was protected
activity under section 7 and his status was not equivalent to that
of a non-employee union organizer.
Further, the Board reasonably concluded that Nova failed to
meet its burden in attempting to show that its no-solicitation rule
was justified by legitimate business reasons. Although Nova
presented evidence of security concerns that it claimed justified
the no-solicitation rule, it never explained how its campus would
be less safe if its on-site contractor employees were permitted to
distribute handbills to their co-workers. Nova’s evidence
showed that the campus is freely accessible to both vehicles and
pedestrians; as its Vice President for Facilities Management
explained, pedestrians can “pretty much walk on campus at
will.” ALJ Hr’g Tr. 217 (Nov. 18, 2008). The Board
acknowledged both “the validity and the importance” of the
need to ensure security on Nova’s open campus, but noted that
9
its no-solicitation rule prohibited “the distribution of literature,
not trespassing or unauthorized entry[,]” and that Nova
“maintained a broad range of controls over UNICCO and its
employees” that addressed security concerns. 357 N.L.R.B. No.
74 at 3. Even before this court, Nova’s briefs fail to offer an
explanation of how its no-solicitation rule addresses its security
concerns.
To the extent Nova objects to the ALJ’s exclusion of certain
safety evidence by its Public Safety Director, it fails to show that
it suffered prejudice as a result. See Exxon Chem. Co. v. NLRB,
386 F.3d 1160, 1166 (D.C. Cir. 2004); Reno Hilton Resorts v.
NLRB, 196 F.3d 1275, 1285 n.10 (D.C. Cir. 1999). The ALJ
excluded as irrelevant evidence of events that “occurred after the
dates involved” in Nova’s enforcement of its no-solicitation rule
as to McGonigle. See ALJ Hr’g Tr. 133-34 (Nov. 17, 2008).
On appeal, Nova maintains that this evidence would have related
to the “vulnerability of the campus,” Pet’r/Cross-Resp’t’s Br.
41-43, and “on-campus crimes . . . by Nova’s contractor[s],”
Pet’r/Cross-Resp’t’s Reply Br. 6-7 (internal quotation omitted).
Although Nova’s June 12, 2009 reply brief to the Board may
have sufficiently identified its objection to the ALJ’s exclusion
of this evidence, Nova failed to explain how this testimony
would show “why the campus would be any less safe if
[UNICCO employees] distributed union flyers to fellow
employees.” 357 N.L.R.B. No. 74 at 3. Nova presented
testimony about its security concerns and various incidents, and
noted in its reply brief to the Board both the “numerous incident
reports introduced by the General Counsel” and the
“corroborating testimony” by Nova’s Vice President for
Facilities Management. The Board accepted the validity of
Nova’s safety concerns and explained how it factored them into
its conclusion. See id. Under the circumstances, Nova fails to
show prejudice.
10
Nova’s other objection that it did not “prohibit” McGonigle
from handbilling, but merely required that he obtain prior
permission, fares no better. Under long-established Board
precedent, an employer may not condition the exercise of
section 7 rights upon its own authorization. J.R. Simplot Co.,
137 N.L.R.B. 1552, 1553 (1962); see Cogburn Health Ctr., Inc.
v. NLRB, 437 F.3d 1266, 1270-71 (D.C. Cir. 2006); Jas. H.
Matthews & Co. v. NLRB, 354 F.2d 432, 440 (8th Cir. 1965).
Nova’s attempt to distinguish this precedent on the basis that
Nova did not directly employ McGonigle is “essentially”
repeating the argument the Board rejected in NYNY that onsite
employees are not entitled to solicit because they are equivalent
to non-employee union organizers. Resp’t’s Br. 18. Nova’s
argument that it did not “exclude” McGonigle from its campus
is thus immaterial.
Nova’s suggestion that there was no record basis for
imputing section 8(a)(1) liability to it for the discipline imposed
by a UNICCO supervisor on one of its own employees for
violating Nova’s non-solicitation rule also lacks merit.
Substantial evidence, which is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion,” Universal Camera, 340 U.S. at 477, supports the
Board’s finding that Todaro, while acting as Nova’s agent,
disciplined McGonigle for handbilling in violation of Nova’s
no-solicitation rule. First, the ALJ credited McGonigle’s
testimony regarding his conversation with Todaro, and Nova
fails to present grounds on which the court can reject that
determination. See Wayneview Care Ctr. v. NLRB, 664 F.3d
341, 349 (D.C. Cir. 2011); cf. Progressive Elec., Inc. v. NLRB,
453 F.3d 538, 551 (D.C. Cir. 2006). According to McGonigle,
Todaro told him that he was being “written up” for passing out
handbills on Nova’s private property without prior authorization
contrary to Nova’s no-solicitation rule. Todaro gave McGonigle
a disciplinary notice and a copy of the rule. All this occurred in
11
Todaro’s office. Substantial evidence exists despite the absence
of Todaro’s signature on the disciplinary notice itself.
Second, there was substantial evidence that in disciplining
McGonigle, Todaro was acting as Nova’s agent. It has long
been settled by the Board that an employer may violate the
NLRA through the conduct of its agents. E.g., Progressive
Elec., Inc., 453 F.3d at 545-46. The Board applies common law
principles of agency, construed liberally, when assigning
liability under the NLRA. See Int’l Ass’n of Machinists v.
NLRB, 311 U.S. 72, 80-81 (1940); Progressive Elec., Inc., 453
F.3d at 545-46; see also Uniroyal Tech. Corp. v. NLRB, 98 F.3d
993, 999-1000 & n.15 (7th Cir. 1996). Although Todaro was a
UNICCO supervisor at the time he spoke with McGonigle,
UNICCO’s contract required it to ensure that its employees
complied with Nova’s policies. Todaro wore work shirts with
the logos of both UNICCO and Nova, had a Nova e-mail
address, and was listed on Nova’s website in a manner
suggesting he was a Nova employee. In these circumstances,
Todaro’s enforcement of a Nova policy could cause an
employee to reasonably believe that Todaro was acting on
Nova’s behalf, satisfying the standard for agency. See
Progressive Elec., Inc., 453 F.3d at 545-46.
C.
Nova additionally contends that the Board misapplied
NYNY in concluding that Nova’s onsite contractor employees
were entitled to distribute union literature in Nova’s parking lot.
In Nova’s view, the contractors’ maintenance work was not
“integral” to Nova’s business of providing a university
education and the handbilling took place in an area that was a
working area not open to the public. The court lacks jurisdiction
to consider these challenges to the Board’s application of NYNY
because Nova failed to “urge[] [them] before the Board”
pursuant to NLRA § 10(e).
12
Before the Board, Nova filed an exception to the ALJ’s
analysis that the facts here differ significantly from those in
NYNY. Nova now seeks to challenge the Board’s adoption of
the ALJ’s finding that the parking lot where McGonigle was
handbilling was a nonworking area open to the public, pointing
to the work done there by UNICCO and to Nova’s permitting
requirements for use of the parking lot. The exceptions Nova
identifies as having previously made this objection to the Board,
however, make only general objections to the ALJ’s analysis.
Nova never explained the grounds for these exceptions, nor
addressed these issues in its brief to the Board, nor cited any
supporting record evidence or case law. Such vague exceptions
are insufficient under section 10(e). See Parsippany Hotel
Mgmt. Co. v. NLRB, 99 F.3d 413, 417-18 (D.C. Cir. 1996).
Nova’s attempt to challenge the Board’s finding that
McGonigle’s work was “integral” to Nova’s business of
education also fails on procedural grounds. Although this
finding was made for the first time by the Board, not the ALJ,
Nova never sought reconsideration by the Board and it offers no
extraordinary circumstances to excuse its failure. See Oldwick
Materials, Inc. v. NLRB, 732 F.2d 339, 342 (3d Cir. 1984)
(citing Woelke, 456 U.S. at 665, and NLRB v. Dist. 50, United
Mine Workers of Am., 355 U.S. 453, 463-64 (1958)).
III.
Nova’s remaining challenge is that the Board had no basis
in law or fact to hold it liable under section 8(a)(1) for
supposedly “coercive” statements made by Todaro to Sanchez,
a former contractor employee seeking future employment with
a new Nova contractor. Nova maintains that the Board’s
precedent is directed at the hiring process of an employer hiring
employees. Even if it assumes Todaro was a Nova employee
during his conversation with Sanchez, Nova maintains their
13
conversation was not a job interview, because Sanchez was not
an applicant for a position with Nova, and Nova was not a
potential employer of Sanchez. Moreover, there was no
evidence that Todaro had decision-making authority or even
input into the hiring decisions of Nova contractors.
Under NLRA § 7 and § 8(a)(1), it is unlawful for an
employer to make threats or statements that tend to coerce
employees in the exercise of their section 7 rights, including
questions about union activities in the context of an
employment interview. Mathews Readymix, Inc., 324 N.L.R.B.
1005, 1007 (1997), enforced in relevant part, 165 F.3d 74, 76-
78 (D.C. Cir. 1999); W & M Props. of Conn., Inc. v. NLRB, 514
F.3d 1341, 1348-49 (D.C. Cir. 2008); see NLRB v. Solboro
Knitting Mills, Inc., 572 F.2d 936, 939-40 (2d Cir. 1978). The
Board, “[w]ithout deciding whether Todaro’s statements to
Sanchez constituted an unlawful interrogation and an unlawful
implied threat,” as the ALJ had found, concluded that Todaro’s
statements were coercive “in the context of Sanchez’s request
for assistance in gaining employment” and thus violated section
8(a)(1). 357 N.L.R.B. No. 74 at 4.
Nova correctly points out that Todaro’s position as a Nova
supervisor is distinct from a position with direct hiring authority
for a Nova contractor, such as existed in the cases cited by the
Board. The Board’s decision acknowledges this reality not only
in the “cf” signal to its precedent but in limiting its decision to
the context of Sanchez’s request for assistance in gaining
employment and not deciding whether Todaro’s statements to
Sanchez constituted an unlawful interrogation and an unlawful
implied threat as might have existed had Todaro had direct
hiring authority for the job Sanchez was seeking. The principle
underlying the Board’s precedent, as stated in Mathews
Readymix, Inc., 324 N.L.R.B. at 1007, is to protect section 7
rights by finding section 8(a)(1) liability where questioning
14
during a job interview about union sympathies can, “under all
the circumstances . . . reasonably tend[] to restrain or interfere
with employees in the exercise of their statutory rights”
(internal citation omitted). Although the conversation between
Sanchez and Todaro was not in the context of a job interview
for a job with Nova, the Board could reasonably conclude that
the rationale of its precedent extends to the owner-contractor
context because there can be the functional equivalent of a job
interview where the owner’s supervisory employee is in a
position to “assist” a former contractor employee in gaining
employment with one of the owner’s new contractors, even if
the supervisor does not have final hiring authority.
The record evidence underscores the real-world
appropriateness of the Board’s application of its precedent in
this context. According to Todaro, his supervisory role for
Nova was to oversee contractors, including those who work on
campus. The evidence showed that another former UNICCO
supervisory employee had assisted laid-off UNICCO employees
in obtaining employment with one of Nova’s new contractors.
Specifically, Thai Nguyen, who, like Todaro, had been hired by
Nova, had successfully recommended that one of Nova’s new
contractors hire other laid off UNICCO employees. Regardless
of whether that assistance occurred before Nguyen was hired by
Nova, Todaro’s instruction for Sanchez to call him in a few
months conveyed that Todaro understood he was in at least a
similar position to assist Sanchez in gaining employment with
a new Nova contractor. The Board could reasonably so
conclude given that Todaro was Nova’s manager overseeing
those contractors.
Otherwise, Nova’s challenge fails because there is
substantial evidence that Todaro’s statements were “coercive.”
Nova stipulated to the ALJ that Todaro was hired as Nova’s
Physical Plant Director on February 18, 2007. Sanchez had
15
been employed by UNICCO to do maintenance work on Nova’s
campus, but was laid off when UNICCO’s contract was
terminated. Nova terminated its contract with UNICCO on
February 17, 2007. The ALJ credited Sanchez’s testimony
about his conversation with Todaro, and, absent grounds to
overturn the ALJ’s credibility determination, see Wayneview
Care Ctr., 664 F.3d at 349, the Board’s conclusion is supported
by Sanchez’s testimony that he and Todaro spoke on campus
the following working day after Sanchez was laid off about
getting employment with one of Nova’s new contractors.
Todaro responded by first asking whether Sanchez had
supported the union and then suggested, “sarcastically,” the
Board found, that Sanchez might be able to get paid by the
union for picketing. 357 N.L.R.B. No. 74 at 4. He also told
Sanchez that although he could not help him get a job at that
time Sanchez should call back in a couple of months. The
Board could reasonably conclude that Todaro’s statement
indicated that Todaro likewise considered himself to be in a
position to assist Sanchez in getting a job with Nova’s new
contractor and that Todaro’s questions, while at the work site,
about Sanchez’s union activities were, under the circumstances,
impermissibly coercive.
Accordingly, we deny the petition for review and grant the
cross-application for enforcement of the Board’s order.