HealthBridge Management, LLC v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 5, 2015 Decided August 18, 2015
No. 14-1101
HEALTHBRIDGE MANAGEMENT, LLC, ET AL.,
PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 14-1116
On Petition for Review and Cross-Application for
Enforcement
of an Order of the National Labor Relations Board
Erin E. Murphy argued the cause for petitioners. With her
on the briefs were Paul D. Clement and William R. Levi.
Jared D. Cantor, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Associate, Linda Dreeben,
Deputy Associate General Counsel, and Julie B. Broido,
Supervisory Attorney.
2
Before: HENDERSON, PILLARD and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.
WILKINS, Circuit Judge: This case arises out of a labor
dispute at six nursing homes in Connecticut operated by
Petitioner HealthBridge Management. After a regional office
of the National Labor Relations Board issued a complaint
against HealthBridge alleging that it unfairly terminated
housekeeping employees, the union that represents employees
at the nursing homes distributed stickers and flyers asserting
that HealthBridge had been “busted” for “violating federal
labor law.” Employees posted the notices on union bulletin
boards, and some wore the stickers in various areas of the
nursing homes where they worked. HealthBridge took down
the flyers and ordered its workers to remove the stickers while
working in patient care areas. The Board concluded that the
company’s conduct violated section 8(1)(a) of the National
Labor Relations Act. HealthBridge petitioned for review of
the Board’s order, and the Board petitioned for enforcement.
For the reasons discussed below, we deny the petition for
review and grant the cross-application for enforcement.
I.
Petitioners in this case are HealthBridge Management,
LLC (“HealthBridge”) and six long-term nursing care centers
the firm operates in Connecticut (the “Centers”). The Centers
provide convalescent and long-term nursing care and cater to
primarily elderly residents. The New England Health Care
Employees Union, District 1199, SEIU, AFL-CIO (the
3
“Union”) serves as the exclusive bargaining unit for non-
managerial healthcare employees at the six Centers.
HealthBridge and the Centers have historically permitted
employees to wear Union insignia at all times in both patient
care and non-patient care areas. See Healthbridge Mgmt.,
LLC, 360 N.L.R.B. No. 118, 2014 WL 2194550, at *7 (May
22, 2014). Collective bargaining agreements (the
“Agreements”) between the Union and the Centers provide
that the Centers must make bulletin boards available for the
display of “proper Union notices” in “a location conspicuous
and accessible to workers.” E.g., J.A. 1117 (Art. 6(D)).
In March 2011, when the events that gave rise to this case
occurred, HealthBridge and the Union were engaged in a
contentious renegotiation of the Agreements, which were set
to expire March 16, 2011. Shortly before that date,
HealthBridge sent a series of letters to residents of the Centers
and their families informing them of its side of the dispute.
HealthBridge told residents that the healthcare industry was
rapidly changing, and that in order to compete with lower-cost
providers, it must make changes to the Agreements, since its
prior bargain with the Union was “simply no longer
sustainable.” J.A. 1073-77. The letters described the Union
as an intractable negotiating partner with a “‘take-it-or-leave-
it’ approach,” and warned that the Union had threatened to
call a strike if it did not get what it wanted. J.A. 1078-81.
HealthBridge told its residents and their families that the
Union “ha[d] a long history” of calling strikes, but that it had
a contingency plan to continue services uninterrupted by
hiring replacement employees if the current nursing staff went
on strike. J.A. 1073-77.
On March 21, 2011, the Board’s Region 34 filed a
complaint against HealthBridge alleging that three of the
4
Centers discharged or threatened certain housekeeping
employees in violation of the National Labor Relations Act
(the “Act” or “NLRA”). Four days later, the Union
distributed stickers to employees at each of the Centers
declaring – in a message superimposed over a black-and-
white image of a gavel – that the Centers had been “BUSTED
March 21, 2011 By National Labor Board For Violating
Federal Labor Law.” J.A. 1029, 1050. The Union also posted
flyers on Union bulletin boards at the Centers stating that
HealthBridge had been “BUSTED” and that the company
“will do ANYTHING—even violate labor law—in [its]
ruthless pursuit of more profit.” J.A. 1062-67. The flyers
advised readers that “[o]n March 21st, the National Labor
Relations Board issued an 18-page federal complaint against
[HealthBridge] for massive violations of federal law” and
asserted that HealthBridge was trying to provoke a strike by
“refusing to sign a contract extension like most other nursing
home operators” and was “exploiting the elderly and their
caregivers by lying, cheating and even law-breaking.” Id.
Lisa Crutchfield, HealthBridge’s Senior Vice President of
Labor Relations, held a conference call that day with
managers at the Centers instructing them to prohibit
employees from wearing the stickers when working in
resident-care areas or providing care to residents. She told
managers to ask employees who refused to observe the policy
to punch their time-cards out and leave the premises. At two
Centers, management banned employees from wearing the
stickers in any area of the facility, including non-patient care
areas. Healthbridge, 2014 WL 2194550, at *7. Crutchfield
also instructed managers at the Centers to remove the flyers
from the bulletin boards. A week later, HealthBridge sent
additional letters to residents and their families, informing
them about the flyers, which it said were “full of misleading
and false statements . . . designed to try and harm the
5
reputation of our Center in the community.” J.A. 1083-85.
The letters set forth HealthBridge’s position on the
“completely baseless” allegations in the Board’s March 21
complaint, explained that there had not yet been any hearing
or ruling in the case, and declared that HealthBridge planned
to mount a robust defense. Id.
The Union filed charges with the Board concerning the
sticker ban and flyer removals. The Board subsequently filed
complaints alleging that HealthBridge’s actions “interfer[ed]
with, restrain[ed], and coerc[ed HealthBridge’s] employees in
the exercise of” their right to collective bargaining under
section 7 of the Act, 29 U.S.C. § 157, in violation of section
8(a)(1) of the Act, id. § 158(a)(1). J.A. 32.
At a hearing before an ALJ, Crutchfield testified that she
ordered the stickers banned from patient care areas out of
concern for residents, who might think HealthBridge had
committed a crime that could impact resident care.1 J.A. 799-
1
Specifically, Crutchfield averred:
My concern was that if a resident was being cared for by
somebody wearing this sticker it may cause confusion. The
resident may not understand what – the sticker itself says
busted with a judge’s gavel. And it’s saying that the center
was busted. It suggests some kind of crime. I was concerned
that residents would think – would not understand this was
related to a labor matter and might be concerned for a larger
issue. What is happening here at this center? Has this center
been convicted of a crime? Is that impacting the care that I’m
receiving? So my concern was that residents may be upset by
this, may not understand it and it may create confusion and
disruption for them.
J.A. 799-800.
6
800. HealthBridge also produced an expert on geriatric
nursing care, Dr. Ilene Warner-Maron, who testified that the
“busted” sticker could have posed a risk to the emotional
wellbeing of vulnerable nursing home residents dependent on
staff to render care. She testified that the word “busted” has a
negative connotation that suggests arrest or bankruptcy, and
that seeing the word, printed in red lettering on a sticker worn
by their caregivers, could cause residents to become “agitated,
upset, worried, [or] concerned.” J.A. 721. Warner-Maron
also told the ALJ that the sticker’s statement that the Centers
had violated the law could lead residents to fear that their
nursing home would be closed, and they would be transferred
to a new facility, an assertion she believed could be a form of
emotional abuse. She admitted, however, that she did not
speak with any residents, family members, or caregivers at
any of the Centers in forming her opinion.
Crutchfield testified that she ordered the flyers removed
because she did not consider them “proper” within the
meaning of the Agreement provision permitting the Union’s
use of bulletin boards. She found them improper because
they were “disparaging,” “derogatory,” and “defamatory”
toward HealthBridge and falsely suggested that HealthBridge
did not care about its residents or employees.2 J.A. 774, 778.
Crutchfield had previously asked her subordinates to remove
other notices, including flyers stating that HealthBridge had
robbed employees of vacation time, had “kick[ed employees]
out the door,” J.A. 810-11, would “[t]ake away every single
thing we’ve fought for,” and would “turn our nursing home
into a sweatshop,” J.A. 1055-60. Other notices Crutchfield
removed included postings updating Union members on
2
Asked for examples of a “proper” notice, Crutchfield listed those
informing Union members about the date and time of meetings,
contract negotiations, and other Union-related events.
7
changes HealthBridge sought to the terms of the Agreements.
She did not communicate with or seek to inform anyone in the
Union before removing the flyers. Crutchfield acknowledged
that the Agreements did not expressly authorize HealthBridge
to remove Union notices from the bulletin boards.
The ALJ determined that HealthBridge violated section
8(a)(1) of the Act by removing the flyers and banning the
stickers from patient care areas at the six Centers (as well as
non-patient areas at two of the Centers). A three-member
panel of the Board voted unanimously to uphold the charges
against HealthBridge related to the flyer removal, but split
two-to-one in favor of the Union on whether the sticker ban
contravened the Act. The Board determined that the
prohibition on the stickers was presumptively invalid and
could only be overcome by a showing of special
circumstances, endorsing the ALJ’s view of the case.3 The
Board said it did not require “actual harm or a disturbance to
patients” for a showing of special circumstances, but that
Crutchfield and Warner-Maron’s “general and speculative
testimony” was insufficient, since neither testified “based on
any specific experience with a patient, family member, or
3
The ALJ had concluded that, although a health care center’s ban
on all non-employer insignia in patient care areas is presumptively
valid, a selective ban on only certain union insignia is not entitled
to a presumption of validity, and can only be justified by a showing
of special circumstances. Healthbridge, 2014 WL 2194550, at *7
(citing Saint John’s Health Ctr., 357 N.L.R.B. No. 170, 2011 WL
7052273, at *1-2 (2011)). He determined that HealthBridge could
not demonstrate special circumstances, which would have required
proof that the ban was “necessary to avoid disruption of health care
operations or disturbance of patients,” because there was no
evidence to support Crutchfield’s “speculative” belief that the
stickers would cause resident concerns, and Warner-Maron’s post-
hoc expert testimony had not served as the basis of the ban. Id.
8
employee,” and Warner-Maron had not even spoken to any
residents or caregivers at the Centers. Healthbridge, 2014
WL 2194550, at *3. The majority also found the fact that
HealthBridge had itself repeatedly written to inform residents
about the very labor unrest that it claimed they would find
upsetting significantly weakened the force of Crutchfield’s
and Warner-Maron’s testimony. Id.
The entire panel agreed that HealthBridge was not
entitled to remove the flyers because it did not produce any
evidence to suggest the Agreements permitted it to
unilaterally interpret what was a “proper” notice and remove
items it considered improper. Id. at *1.4
In a partial dissent, Member Miscimarra contended that
bans on union insignia in patient care areas, categorical or not,
are always presumptively valid, and that the majority’s logic
would require HealthBridge to show patients actually were
upset by the stickers in order to demonstrate special
circumstances. Id. at *6. He argued such a requirement
would force healthcare employers to allow their union
practices to harm patients in order to demonstrate their actions
were justified in a subsequent proceeding before the Board.
He also argued that, even though she was not engaged as an
expert until after the conduct at issue, Warner-Maron’s
testimony was relevant to determining the existence of special
4
The ALJ concluded that the Union’s use of the term “busted” on
the flyers was not inaccurate, given that the Board had issued a
complaint against HealthBridge for violations of labor law, and that
even if the flyers’ statements were inaccurate, “at most, it would
constitute ‘biased, prounion opinion,’” which was insufficient to
empower HealthBridge to remove them. Healthbridge, 2014 WL
2194550, at *7 (quoting Roll & Hold Warehouse & Distrib. Corp.,
325 N.L.R.B. 41, 51 (1997)).
9
circumstances, because it bolstered Crutchfield’s reasoning.
Id. at *6 n.6.
HealthBridge filed a petition for review in this Court.
See 29 U.S.C. § 160(f). The Board petitioned for enforcement
of its order. See id. § 160(e).
II.
The Court upholds the Board’s findings of fact if
supported by “substantial evidence on the record considered
as a whole.” 29 U.S.C. § 160(e), (f). The Court owes
“substantial deference” to the Board’s factual inferences from
the record before it, Halle Enters., Inc. v. NLRB, 247 F.3d
268, 271 (D.C. Cir. 2001) (internal quotation mark omitted),
and “[w]hen the Board concludes that a violation of the Act
has occurred, [the Court] must uphold that finding unless it
has no rational basis or is unsupported by substantial
evidence.” Tenneco Auto., Inc. v. NLRB, 716 F.3d 640, 647
(D.C. Cir. 2013) (internal quotation mark omitted). “It is not
necessary that we agree that the Board reached the best
outcome in order to sustain its decisions.” Bally’s Park
Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)
(internal quotation marks omitted). As for rules the Board
creates for resolution of the matters that come before it, “[t]he
judicial role is narrow: The rule which the Board adopts is
judicially reviewable for consistency with the Act, and for
rationality, but if it satisfies those criteria, the Board’s
application of the rule . . . must be enforced.” Beth Israel
Hosp. v. NLRB, 437 U.S. 483, 501 (1978). In reviewing the
Board’s decision, the Court must consider the “whole record,”
including not only materials that support the Board’s findings
but also “whatever in the record fairly detracts from its
10
weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474,
488 (1951).5
Under section 8(a)(1) of the NLRA, it is an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of” employees’ section 7 right to
“self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. §§ 157, 158(a)(1). The right to self-
organize “necessarily encompasses the right effectively to
communicate with one another regarding self-organization at
the jobsite.” Brockton Hosp. v. NLRB, 294 F.3d 100, 103
(D.C. Cir. 2002) (quoting Beth Israel Hosp., 437 U.S. at 491).
The workplace is, in fact, a particularly appropriate place for
employees to communicate about self-organization, since it
“is the one place where [employees] clearly share common
interests and where they traditionally seek to persuade fellow
workers in matters affecting their union organizational life
and other matters related to their status as employees.”
Eastex, Inc. v. NLRB, 437 U.S. 556, 574 (1978) (alteration in
original) (internal quotation marks omitted).
The Board has long recognized that employees have the
right to wear union insignia in the workplace. Washington
State Nurses Ass’n v. NLRB, 526 F.3d 577, 580 (9th Cir.
2008) (citing London Mem’l Hosp., 238 N.L.R.B. 704, 708
(1978)). Bans on union insignia in the workplace are
5
Our dissenting colleague, while acknowledging the deferential
nature of our review of Board findings of fact, nonetheless picks
apart the Board’s findings because the Board did not credit all of
HealthBridge’s evidence and did not give HealthBridge the benefit
of all inferences. That approach is decidedly inconsistent with the
deferential inquiry Congress has imposed on us in the NLRA.
11
therefore presumptively invalid, absent a showing by the
employer of “special circumstances” to support the ban. See
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-04 n.10
(1945). In the healthcare context, establishing “special
circumstances” requires evidence that a ban is “necessary to
avoid disruption of health-care operations or disturbance of
patients.” Beth Israel Hosp., 437 U.S. at 507.
In healthcare facilities, however, this rebuttable
presumption applies only to areas where patients are not cared
for. In “immediate patient care areas,” bans on union insignia
are not presumptively invalid. NLRB v. Baptist Hosp., Inc.,
442 U.S. 773, 778 (1979); Sutter East Bay Hosps. v. NLRB,
687 F.3d 424, 433 (D.C. Cir. 2012). Immediate patient care
areas include “patients’ rooms, operating rooms, and places
where patients receive treatment, such as x-ray and therapy
areas.” Baptist Hosp., 442 U.S. at 780 (quoting St. John’s
Hosp. and Sch. of Nursing, Inc., 222 N.L.R.B. 1150, 1150
(1976)). The rationale for this rule is the need to “maintain[]
a peaceful and relaxed atmosphere,” since
Hospitals, after all, are not factories or mines or assembly
plants. . . . [T]he patient and his family—irrespective of
whether that patient and that family are labor or
management oriented—need a restful, uncluttered,
relaxing, and helpful atmosphere, rather than one
remindful of the tensions of the marketplace in addition
to the tensions of the sick bed.
Baptist Hosp., 442 U.S. at 783-84 n.12 (quoting Beth Israel
Hosp., 437 U.S. at 509 (Blackmun, J., concurring in
judgment)).
12
A.
We first address HealthBridge’s challenge to the rule the
Board applied in this case, which the firm argues is irrational
and upsets the proper balance between employees’ rights and
healthcare providers’ responsibilities to patients. In Saint
John’s Health Center, 357 N.L.R.B. No. 170, 2011 WL
7052273, at *1-2 (2011), the Board determined that only
categorical employer bans on insignia in patient care areas are
presumptively valid. Where, conversely, an employer banned
only certain union insignia in those areas, the Board would
consider the ban presumptively invalid because, “[h]aving
allowed other types of insignia to be worn in immediate
patient care areas, the [hospital] may not now rely on the
protection of the presumption of validity applicable to an
across-the-board ban to justify its selective ban of only the
specific union insignia at issue.” Id. at *2.
HealthBridge now asks us to overturn this presumption
against selective insignia bans, but it gave the Board no
opportunity to reconsider the presumption in the first instance.
As relevant here, its exceptions to the ALJ’s findings and
conclusions of law challenge only (1) the ALJ’s determination
that HealthBridge did not establish special circumstances that
justified its sticker ban, and (2) the ALJ’s discounting of
Warner-Maron’s testimony. Nor did HealthBridge’s detailed
brief before the Board challenge the Board’s presumption
against selective bans; there, HealthBridge merely cited Saint
John’s as controlling authority without asking the Board to
alter its policy. Brief in Support of Respondent’s Exception
to Administrative Law Judge’s Decision at 19, 33,
Healthbridge, 360 N.L.R.B. No. 118 (Aug. 17, 2012). In that
forum, HealthBridge contended only that its selective insignia
ban was consistent with Saint John’s. And HealthBridge did
not seek reconsideration by the Board even though the Board
13
split on the validity of its sticker ban and one member
explicitly questioned the rationale of Saint John’s in dissent.
Only now, having obtained an unfavorable outcome from the
Board, has HealthBridge changed tack, and it devotes the
heart of its opening brief before this Court to arguing that the
presumption is contrary to the Act. See Petitioner’s Br. at 25-
33.
Under section 10(e) of the Act, “[n]o objection that has
not been urged before the Board . . . shall be considered by
the court,” absent extraordinary circumstances. 29 U.S.C. §
160(e); see also Woelke & Romero Framing, Inc. v. NLRB,
456 U.S. 645, 665 (1982); Brockton Hosp., 294 F.3d at 105-
06. The Board’s rules require parties to “set forth specifically
the questions of procedure, fact, law, or policy to which
exception is taken” and “concisely state the grounds for the
exception,” or risk waiver. 29 C.F.R. § 102.46(b). This rule
“serves a sound purpose” and we are bound by it. Detroit
Edison Co. v. NLRB, 440 U.S. 301, 311 n.10 (1979). Indeed,
the Board’s order in Saint John’s was issued eight months
before HealthBridge filed its exceptions and accompanying
brief, and its brief indicates HealthBridge was aware of the
policy. HealthBridge had ample time to argue to the Board
that the presumption is an impermissible reading of the Act.
HealthBridge claims we should overlook its failure to
apprise the Board of its claim, since the Board “explicitly
addressed the validity of the policy, both in the majority
opinion and in the partial dissent.” Petitioners’ Reply at 8
(emphasis omitted). This is hard to square with the language
of the Board’s order, which merely restates the selective ban
presumption and applies it without discussing the virtues of
the rule or the extent to which it comports with the Act and its
purposes. See Healthbridge, 2014 WL 2194550, at *2-4.
True, the dissenting member explicitly questioned the wisdom
14
of the presumption. See id. at *6. But even if this gave the
majority notice the presumption itself was at issue, it is
insufficient to invoke our jurisdiction. HealthBridge contends
that “the critical question in satisfying section 10(e) is
whether the Board received adequate notice,” Petitioner’s
Reply at 8, but “section 10(e) bars review of any issue not
presented to the Board, even where the Board has discussed
and decided the issue,” Alwin Mfg. Co. v. NLRB, 192 F.3d
133, 143 (D.C. Cir. 1999) (emphasis added). Where the
Board addresses an issue not raised by the parties, the party
aggrieved can preserve its claim for judicial review by
seeking reconsideration by the Board. Woelke, 456 U.S. at
665-66; see 29 C.F.R. § 102.48(d) (providing for
“reconsideration, rehearing, or reopening of the record after
the Board decision or order”). But HealthBridge never sought
reconsideration in this case. HealthBridge failed to put this
issue before the Board, and we consequently lack jurisdiction
over this aspect of its petition.6
6
HealthBridge also contests as retroactive the Board’s application
of its presumption against selective insignia bans in patient care
areas in this case. Petitioners’ Br. at 32-33. Under this Circuit’s
law, “retroactive effect is appropriate” for adjudicatory rules—such
as those articulated in Saint John’s—that are “new applications of
existing law, clarifications, and additions” rather than the
“substitution of new law for old law that was reasonably clear.”
Verizon Tel. Cos. v. FCC, 269 F.3d 1098, 1109 (D.C. Cir. 2001)
(internal citation omitted). Saint John’s constituted, at most, a
more conclusive statement of the Board’s prior position. See Mt.
Clemens Gen. Hosp., 335 N.L.R.B. 48, 50 (2001) (stating that the
“normal[]” presumption of validity for bans on union insignia in
patient care areas does not apply to a ban on one item where “other
insignia or union buttons” are permitted). Moreover, although
HealthBridge states that it “plainly relied in good faith on the
traditional presumption of validity [of insignia bans] in patient-care
areas” in banning the “busted” stickers, Petitioner’s Reply at 9, it
“fail[s] to identify any likely type of reliance.” Dist. Lodge 64, Int’l
15
B.
We find the Board’s conclusion that HealthBridge failed
to demonstrate special circumstances in support of its ban
supported by substantial evidence in the record. Our review
of the Board’s determination is necessarily limited, as “the
function of striking th[e] balance [between employer and
employee rights] to effectuate national labor policy is often a
difficult and delicate responsibility, which the Congress
committed primarily to the National Labor Relations Board,
subject to limited judicial review.” NLRB v. Local 103, Int’l
Ass’n of Bridge, Structural & Ornamental Iron Workers, 434
U.S. 335, 350 (1978) (original alterations omitted) (quoting
NLRB v. Truck Drivers Local 449, Int’l Brotherhood of
Teamsters, 353 U.S. 87, 96 (1957)). Under this deferential
standard of review, HealthBridge fails to demonstrate that the
Board’s finding had no rational basis or was unsupported by
substantial evidence.
Crutchfield testified that she thought residents who saw
the stickers “would not understand this was related to a labor
matter” and might fear the Centers had been “convicted of a
crime,” J.A. 799-800, but the stickers clearly stated that the
company had been busted by the “National Labor Board For
Violating Federal Labor Law,” J.A. 1050 (emphasis added).
Ass’n of Machinists & Aerospace Workers v. NLRB, 949 F.2d 441,
448 (D.C. Cir. 1991). It could not, for instance, have reacted by
enacting a wholesale ban on insignia in patient care areas; that ship
had already sailed because it had long permitted other Union
buttons in those areas. What HealthBridge seems to be saying is
that, had it known it would have to establish special circumstances
to justify its ban, it would have done more to determine whether
patients would actually find the stickers disturbing, but since it
claims patient concerns alone animated its ban, it should have done
that anyway.
16
Far from Crutchfield’s and Warner-Maron’s surmise that
residents would fear the shutdown of their facility and transfer
to another home, the stickers made plain that the Centers had
been accused of mistreating employees, not residents. An
employer’s violation of labor law is quite different from a
criminal conviction, and HealthBridge introduced no evidence
to demonstrate that its residents would think otherwise.
Moreover, its own letters made clear that the charges
stemmed from alleged labor law violations, not any infraction
related to patient care.
The Board was justified in finding that it would be
irrational to assume that residents would become distraught
and traumatized by a two-and-a-half inch, ten-word sticker
suggesting their nursing home had been caught violating labor
law, but would be reassured by HealthBridge’s repeated and
detailed letters to residents and their family members
threatening an imminent Union strike that could lead to
replacement of the entire staff that cared for their most basic
needs. The Board rightly attributed significance to
HealthBridge’s stream of strike-related correspondence, sent
at the same time it prohibited employees from wearing the
“busted” stickers. See Healthbridge, 2014 WL 2194550, at
*3.
HealthBridge claims that the letters were designed to
calm residents’ fears, demonstrating the “basic disconnect
between the Board’s reasoning and the resident-care concerns
that actually animated [HealthBridge’s] actions.” Petitioners’
Br. at 36. But the Board reasonably concluded that if the
letters were intended to comfort, they were drafted
exceptionally poorly. HealthBridge’s missives invoked the
specter of labor unrest and potential walkouts by nurses and
other healthcare workers at the Centers. HealthBridge’s own
expert conceded on cross-examination that communications to
17
residents that “imply that they might lose the care of . . . their
direct care provider” could constitute emotional abuse. J.A.
740-42. As the Board points out in its brief, “Crutchfield . . .
did not explain why, if [HealthBridge] deemed it appropriate
to present residents with this parade of horribles,” it should be
expected to believe residents would have been disturbed by
the stickers’ message that the firm had violated labor law.
Respondent’s Br. at 20. As we have previously noted, “[w]e
give the Board even greater deference with respect to
questions of fact that turn upon motive,” Capital Cleaning
Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir.
1998), and here, the Board could reasonably consider
“whether [HealthBridge’s banning of the “busted” stickers]
was based upon anti-union animus,” id.
One can easily see how the Board could conclude that
HealthBridge’s letters were intended to present
HealthBridge’s side of renegotiation and to elicit sympathy
for its bargaining position, rather than calm patients. See,
e.g., J.A. 1083-85 (describing Union flyers as “full of
misleading and false statements . . . designed to try and harm
the reputation of our Center[s] in the community” and
characterizing the Board’s March 21 complaint as
unfounded). In confronting similar attempts by healthcare
employers to stifle union solicitation, we have held that
employer discrimination between a union’s message about a
labor dispute and the employer’s own public communications
on the same issue seriously weakens the justification for a
ban. Stanford Hosp. and Clinics v. NLRB, 325 F.3d 334, 339
(D.C. Cir. 2003). We decline to sanction a blatant double
standard in favor of employers in this case.
HealthBridge also failed to adduce evidence showing the
stickers were objectively disturbing. In Baptist Hospital, the
Supreme Court held that the “extensive” testimony of two
18
physicians at the hospital that they had observed care
disrupted when patients thought their doctor was focused on
anything other than patient care “related [the ban on
solicitation] directly to the well-being of patients.” 442 U.S.
at 782-83. Key to Baptist Hospital’s finding of special
circumstances was the doctors’ and an administrator’s ability
to “tie[] the need for tranquility to past experiences with
patients.” Washington State Nurses Ass’n, 526 F.3d at 584
(citing Baptist Hosp., 442 U.S. at 783-84); see also Mt.
Clemens General Hospital. v. NLRB, 328 F.3d 837, 847 (6th
Cir. 2003) (evidence required to rebut a presumption of
invalidity must go beyond mere “speculation”).
In contrast, HealthBridge produced no testimony from
any healthcare professional drawn from experience in caring
for patients at the Centers. The only HealthBridge employee
who testified in support of the sticker prohibition was
Crutchfield, an attorney who testified that her duties are to
“oversee the development of labor relations strategy,” human
resources, and implementation of collective bargaining
agreements. J.A. 766.
Furthermore, the Board reasonably found that
Crutchfield’s and Warner-Maron’s testimony was speculative
and conjectural. Crutchfield traced her opinion to no actual
interactions with or comments from residents, family
members, or employees. She cited no evidence showing the
likelihood that patients would be harmed, either empirical or
anecdotal. Nor did she attempt to differentiate the “busted”
stickers from other insignia HealthBridge had permitted in the
past. See Washington State Nurses Ass’n, 526 F.3d at 584
(testimony that nurse managers had expressed their concern
about the impact of buttons on patients did not show how
prohibited buttons differed from similar buttons worn before
that “caused no ill effects”); Mt. Clemens Gen. Hosp., 328
19
F.3d at 848 (no justification for ban on buttons protesting
“forced overtime” in intensive care units because hospital did
not show “openly contentious” buttons previously worn in
patient care areas were “singularly disturbing and
disruptive”).
HealthBridge contends that the Board held it to a
standard contrary to our precedent by requiring it show
“actual complaints from residents.” Petitioners’ Br. at 33; see
Brockton Hosp., 294 F.3d at 104 (a hospital need only show
“a likelihood of, not actual, disruption or disturbance”) (citing
Baptist Hosp., 442 U.S. at 781 n.11). The Board did no such
thing. In fact, it clarified that it did “not require actual harm
or a disturbance to patients.” Healthbridge, 2014 WL
2194550, at *4. The infirmity in Crutchfield’s testimony was
that it was “not based on any specific experience with a
patient, family member, or employee” or “specific evidence
of harm or likelihood of harm to patients from employees
wearing the sticker.” Id. at *3.
Likewise, when it demanded that Warner-Maron’s
opinion be “informed by actual information about or
experience with the facilities, their staff, or their patients” or
by speaking to “patients, family members or care givers,” the
Board was not requiring the stickers be shown to patients, but
rather that she speak to them to gauge whether they were
sufficiently vulnerable that the stickers would confuse or
upset them. Id. at *3. Had Warner-Maron actually spoken
with residents or caregivers, she could have determined what
sort of phrases or images would endanger them and whether
HealthBridge’s own attempts to contextualize the Board’s
complaint would assuage potential fears. Instead of asking
patients about what they would find upsetting, however,
Warner-Maron’s opinion rested on googling the word
“busted” and concluding the results would upset elderly
20
residents.7 Her speculation, untethered as it was from any
patient or staff interviews or visits to the Centers, was of little
use in determining why these stickers, in contrast to the
insignia nurses have worn in the past, merited prohibition.
The dissent’s point about expert evidence is misplaced.
It is, of course, true that, for expert evidence to be admissible,
it need not be based on eyewitness observation of the conduct
at issue in a case, but the Board as fact-finder was entitled to
determine the weight it would accord Warner-Maron’s
evidence. The Board could reasonably discount her testimony
not only because her entire review of materials in preparation
for the hearing was comprised of looking at the stickers and
using her internet browser to look up the word “busted,” but
also because her concerns about the “busted” sticker could
reasonably be deemed inconsistent with her lack of concern
with the patient letters sent by HealthBridge and the other
union insignia that HealthBridge had previously allowed. The
Board could reasonably agree with the ALJ’s assessment that
Warner-Maron’s opinion was speculative and of the same ilk
as the ipse dixit that courts routinely discount as entitled to
little, if any, weight. Cf. Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997). “Since the Board is obviously best situated
to assess the credibility and demeanor of [expert] witnesses,
this court must defer to that judgment so long as it is
reasonable.” Carstens v. Nuclear Regulatory Comm’n, 742
F.2d 1546, 1553 (D.C. Cir. 1984).
7
HealthBridge caricatures the Board’s concerns as relating to the
fact that Warner-Maron “used Google to look up the definition of a
word instead of, apparently, consulting a paper copy of Websters.”
Petitioners’ Reply Br. at 10 n.2. In fact, the Board considered her
testimony insufficient because it did not elucidate what a patient—
rather than an internet search engine—would have thought the term
“busted” meant.
21
Our role is not to substitute our judgment for that of the
Board; “[r]ather, a reviewing court must ‘ask whether a
reasonable mind might accept a particular evidentiary record
as adequate to support a conclusion.’” HARRY T. EDWARDS &
LINDA A. ELLIOTT, FEDERAL STANDARDS OF REVIEW:
APPELLATE REVIEW OF DISTRICT COURT DECISIONS AND
AGENCY ACTIONS 176 (2007) (quoting Dickinson v. Zurko,
527 U.S. 150, 162 (1999)). “Or, put differently, . . . whether,
on the record under review, ‘it would have been possible for a
reasonable jury to reach the [agency’s] conclusion.’” Id.
(alterations in original) (quoting Allentown Mack Sales &
Serv., Inc. v. NLRB, 522 U.S. 359, 366–67 (1998)).” The
Board’s conclusion that HealthBridge’s ban on the “busted”
stickers violated section 8(a)(1) meets this standard, and it is
therefore supported by substantial evidence in the record.8
III.
The Board’s finding that HealthBridge violated the
NLRA by removing the “busted” notices from Union bulletin
boards also finds substantial support in the record. Having
extended the right to post Union notices on designated
bulletin boards, the company was not free to remove them
unilaterally based on its conclusion that they were
“disparaging” or inaccurate.
Unions and employees have “no statutory right . . . to use
an employer’s bulletin board.” NLRB v. Honeywell, Inc., 722
F.2d 405, 406 (8th Cir. 1983) (internal quotation mark
omitted). However, once an employer permits employees
8
HealthBridge did not challenge the ALJ’s finding that two of its
Centers banned nurses from wearing the “busted” stickers in non-
patient care areas in its exceptions to the Board. It has therefore
waived this argument. See 29 U.S.C. § 160(e); 29 C.F.R. §
102.46(b).
22
access to a bulletin board, the union’s right to post takes on
the protection of section 7 of the Act. Union Carbide Corp. v.
NLRB, 714 F.2d 657, 660-61 (6th Cir. 1983). Naturally, an
employer that grants employees or a union access to bulletin
boards may use its collective bargaining agreement (or past
practice) to impose “limitations, restrictions, and regulations”
on those rights, Stevens Graphics, Inc., 339 N.L.R.B. 457,
461 (2003), but it cannot discriminate against union-related
material without violating the Act. NLRB v. Southwire Co.,
801 F.2d 1252, 1256 (11th Cir. 1986). “The critical question
is whether the employer is discriminating against union
messages, or if it has a neutral policy of permitting only
certain kinds of postings.” Loparex LLC v. NLRB, 591 F.3d
540, 545 (7th Cir. 2009) (citing Fleming Cos. v. NLRB, 349
F.3d 968, 975 (7th Cir. 2003)).
At the outset, it is worth noting that the Union bulletin
boards were located in employee break rooms. Thus,
HealthBridge cannot argue that it removed the flyers to
protect patients because the flyers, unlike the stickers, were
not placed where patients would see them. The flyers could
not pose any threat of upsetting patients, but HealthBridge
argues that it was entitled to remove them as not “proper”
postings under the Agreements and as unprotected Union
speech under the NLRA.
HealthBridge argues that the Agreements’ requirement
that Union notices be “proper” permitted it to adopt a policy
mandating the removal of “derogatory, disparaging, or
inaccurate postings.” Petitioners’ Br. at 40.9 Presumably,
9
HealthBridge’s argument that the Board should have resolved the
flyers issue under section 8(a)(5) – which relates to the
implementation of collective bargaining agreements – is mistaken.
First, the Supreme Court long ago held that the Board is
empowered to interpret a collective bargaining agreement in the
23
since Crutchfield “discretely [sic]” removed the Union’s
notices without first notifying the Union, Healthbridge, 2014
WL 2194550, at *7, HealthBridge also believes the
Agreements entitle it to unilaterally determine what postings
warrant removal without consulting or even notifying the
Union.10 See Petitioner’s Br. at 41. As Crutchfield
course of deciding an unfair labor practice charge under section
8(a)(1). NLRB v. C & C Plywood Corp., 385 U.S. 421, 429-30
(1967). And although the Board’s decision does discuss the
parties’ expectations about what would constitute a “proper” notice,
see Healthbridge, 2014 WL 2194550, at *1, the Board’s decision
affirmed an ALJ order that focused not on whether HealthBridge
had a right to remove the flyers under the Agreements, but whether
its unilateral interpretation of the Agreements to permit it to remove
flyers it deemed “abusive” or “derogatory” violated employees’
right to communicate about HealthBridge’s treatment of its
workers. This falls squarely under section 8(a)(1). See Cent.
Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972) (“Early in the
history of the administration of the Act the Board recognized the
importance of freedom of communication to the free exercise of
organization rights.”).
10
Even if the Union had been aware of the prior removals,
Crutchfield’s prior orders to administrators to remove other Union
flyers are irrelevant. Roll & Hold Warehouse & Distribution Corp.,
325 N.L.R.B. 41, 51 (1997) (“A union does not waive its statutory
rights . . . by failure to object to past instances of unilateral changes
in employment policy.”), enf’d, 162 F.3d 513, 521 (7th Cir. 1998).
Moreover, even if HealthBridge had removed the notices
pursuant to a neutral policy it consistently implemented, as it
claims, their removal in the midst of a heated renegotiation of the
Agreements reinforces the Board’s concerns about the company’s
motivations. In Loparex, the Seventh Circuit found it sufficient to
uphold the Board’s finding of a violation that management’s new
policy requiring prior approval of bulletin board postings followed
“immediately after a three- or four-month period in which [the
company] witnessed an uptick in employees’ organizing efforts,”
even though there was no direct evidence the company had
24
acknowledged in her testimony, however, HealthBridge did
not reserve any control over the Union bulletin boards in the
Agreements and did not define what constitutes a “proper”
notice. Crutchfield’s belief that certain notices were
inaccurate did not empower her to remove the notices,
because a union’s expression of opinion on a labor dispute
constitutes a “proper” notice. Monongahela Power Co. v.
NLRB, 62 F.3d 1415, 1995 WL 463108, at *8 (4th Cir. 1995)
(unpublished opinion). Having bargained with the Union to
permit it to communicate with members regarding the status
of collective bargaining, HealthBridge was not free to “stifle
any dissemination of information about” the Board’s charges,
even if it considered the Union’s portrayal of the facts wrong.
Monongahela Power Co., 314 N.L.R.B. 65, 68-69 (1994); cf.
Eastex, Inc., 437 U.S. at 573 (“Petitioner’s only cognizable
property right . . . is in preventing employees from bringing
literature onto its property and distributing it there – not in
choosing which distributions protected by § 7 it wishes to
suppress.”). And the mere fact that HealthBridge considered
the notices disruptive or unpleasant is insufficient to warrant
their removal. NLRB v. Container Corp. of Am., 649 F.2d
1213, 1215 (6th Cir. 1981).
HealthBridge claims that, even though the notices were
protected under section 7, it was entitled to remove them
because of what it terms their “abusive and disparaging”
content. Petitioners’ Br. at 45. Union bulletin board notices,
however, are protected even if “abusive” or “insulting.”
Union Carbide Corp., 714 F.2d at 661 (citing Old Dominion
Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418
removed union notices. 591 F.3d at 547; cf. Sutter East Bay
Hosps., 687 F.3d at 433 (upholding the Board’s finding that a
hospital changed solicitation rules in order to “squelch union
activity” when it suddenly began to prohibit outside groups from
meeting in the cafeteria).
25
U.S. 264, 283 (1974)). Only two exceptions apply to this
protection. First, “where the bulletin boards threaten to
become a battleground for competing groups,” the employer
may regulate materials the union posts. Union Carbide Corp.,
714 F.2d at 661 (internal quotation marks omitted). Second,
even “‘the most repulsive speech enjoys immunity provided it
falls short of a deliberate or reckless untruth,’ so long as the
allegedly offensive actions are directly related to activities
protected by the Act and are not so egregious as to be
considered indefensible.” Container Corp. of Am., 244
N.L.R.B. 318, 319 (1979) (quoting NLRB v. Cement Transp.,
Inc., 490 F.2d 1024, 1029-30 (6th Cir. 1974)). The “busted”
notice does not relate to any “battle” among competing
unions, and is not so egregious that it loses the protection of
the Act. In Container Corporation, the Sixth Circuit held that
language comparing a manager to a slave driver who would
be happy paying his “chain gang” retained the protection of
section 7. 649 F.2d at 1214-15. In another case, it upheld a
finding that the company improperly removed a union posting
for criticizing the company’s safety record. United Parcel
Serv., Inc. v. NLRB, 228 F.3d 772, 781 (6th Cir. 2000).
Similarly, telling readers that HealthBridge was “exploiting
the elderly and their caregivers by lying, cheating and even
law-breaking” and wanted “to destroy our jobs, our families
and our neighborhoods,” J.A. 1062-67, was certainly
“unpleasant,” Container Corp., 649 F.2d at 1216, but
nonetheless was protected by the Act. We are left with the
impression that HealthBridge attempted to remove the notices
“simply because it disagree[d] with their contents or [found]
them distasteful.” Monongahela Power Co., 1995 WL
463108, at *9. The Board was within reason in concluding
that the Union’s flyers were a protected union
communication. We therefore uphold the Board’s
determination that HealthBridge’s removal of the “busted”
notices violated section 8(a)(1) of the Act.
26
IV.
For the foregoing reasons, we deny the petition for
review and grant the cross-application for enforcement.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in part and dissenting in part: Conspicuously absent from
either the NLRB’s order or the majority opinion is recognition
of a poignant reality: nursing homes provide critical care for
the most vulnerable Americans. They compose our
chronically “sickest” population; “[o]nly a hospital patient
would be considered sicker.” Warner-Maron Trial Test. 541.
Indeed, their residence in a nursing home typically means that
they cannot “live outside an institution” because they “require
. . . care and supervision.” Id. Many suffer from “multiple
illnesses, comorbidities [and] superimposed cognitive
deficits”; accordingly, they depend on caregivers “to bathe,
dress, feed, toilet” and “turn” them. Id. And, of particular
import for this case, “many of them are vulnerable because of
cognitive impairment due to dementia, loss of memory,
Alzheimer’s disease” and “medication effects.” Id. at 543.
The United States Supreme Court has reminded us that the
“patient and his family . . . need a restful, uncluttered,
relaxing, and helpful atmosphere, rather than one remindful of
the tensions of the marketplace in addition to the tensions of
the sick bed.” NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 783
n.12 (1979). The High Court’s admonition, uniquely fitting in
the nursing-home context, ought to animate this case.
Regretfully, it does not. No record evidence, let alone
substantial evidence, supports the Board’s conclusion that
HealthBridge failed to show “a likelihood of . . . disruption or
disturbance” by allowing, in particular, its nursing staff, inter
alia to parade the BUSTED sticker while attending residents.
Brockton Hosp. v. NLRB, 294 F.3d 100, 104 (D.C. Cir. 2002).
Because I cannot join my colleagues’ disposition of this
issue,1 I respectfully dissent.
1
I agree that HealthBridge’s removal of the BUSTED flyer
from union-designated bulletin boards constituted an unfair labor
practice. I also agree with my colleagues that HealthBridge waived
2
I.
The New England Health Care Employees Union,
District 1199, SEIU, AFL-CIO (the Union) distributed the
BUSTED stickers to many HealthBridge employees,
including members of the nursing, maintenance, cafeteria and
housekeeping staffs, at HealthBridge’s six nursing-home
centers, around 7:00 AM on March 25, 2011 and the
employees who donned them did so until about 1:00 PM the
same day. The stickers were removed after Lisa Crutchfield,
HealthBridge’s Senior Vice President of Labor Relations,
ordered them to do so because she feared they would confuse
the “elderly, vulnerable folks” living at the facilities.
Crutchfield Trial Test. 606. Crutchfield, a HealthBridge
employee since November 2005, testified that she works
its challenge to the Board’s presumption of invalidity for selective
insignia bans in immediate-patient-care areas. See Maj. Op. 12–14.
I note, however, that the Board has never provided a good—or
really any—justification for presuming that selective bans on union
insignia in patient-care areas are invalid while presuming that
categorical bans are valid. Given the Supreme Court’s observation
that “[h]ospitals carry on a public function of the utmost
seriousness and importance,” that they “give rise to unique
considerations that do not apply in the industrial settings with
which the Board is more familiar” and, critically, that “[t]he Board
should stand ready to revise its rulings if future experience
demonstrates that the well-being of patients is in fact jeopardized,”
Baptist Hosp., 442 U.S. at 790, one would expect more than the
cursory explanation courts have seen to date. Cf. id. at 791 (Burger,
C.J., concurring in judgment) (“I would think no ‘evidence’ is
needed to establish the proposition that the primary mission of
every hospital is care and concern for the patients and that anything
which tends to interfere with that objective cannot be tolerated. A
religious choir singing in a hospital chapel may well be desirable
but if that interferes with patient care, it cannot be allowed.”).
3
“very closely” with HealthBridge’s nursing-home centers and
is in them “very often,” “walk[ing] the floors” and meeting
with employees, managers and administrators. Id. at 602–03.
Based on this concern—and based on her years of
employment in the healthcare industry, including at least ten
years at HealthBridge—Crutchfield reasoned that:
the sticker itself says busted with a judge’s gavel.
And it’s saying that the center was busted. It
suggests some kind of crime. I was concerned that
residents . . . would not understand this was related
to a labor matter and might be concerned for a larger
issue. What is happening here at this center? Has
this center been convicted of a crime? Is that
impacting the care that I’m receiving? So my
concern was that residents may be upset by this, may
not understand it and it may create confusion and
disruption for them.
Id. at 605–06. There is no dispute that Crutchfield’s
prohibition applied only in areas where residents frequented;
per her instructions, employees were free to wear the stickers
elsewhere.2 The Board did not counter Crutchfield’s
testimony that her primary focus is “to protect those residents
and to care for those residents.” Id. at 605.
HealthBridge supplemented Crutchfield’s testimony with
that of Ilene Warner-Maron, a registered gerontological nurse
who has worked with the elderly since 1975. Warner-Maron
2
Two of the six HealthBridge centers apparently banned the
BUSTED sticker in all areas, despite Crutchfield’s instruction that
displaying the sticker was permissible in non-patient-care areas. I
agree with my colleagues that HealthBridge failed to argue in
support of the two centers’ total ban. See Maj. Op. 21 n.8.
4
is an adjunct college professor at Saint Joseph’s University in
Philadelphia, teaches nursing licensure classes on gerontology
and has administered nursing facilities. She has three masters
degrees—one in social gerontology, one in health
administration and one in law and social policy—and a
doctorate degree in health policy. At the time of her
testimony, Warner-Maron had been admitted as an expert in
fifty-six cases in more than ten states regarding standards of
care in the healthcare industry and she had reviewed
approximately 2,940 cases in toto. She was qualified as an
expert witness in this case without objection.
During her testimony, Warner-Maron first emphasized
the obvious—that nursing homes care for “vulnerable adults
who have physical and/or cognitive impairment [and] who are
dependent on the facility staff to render care, sometimes very
personal, intimate care; bathing, grooming, toileting, diapers,
those types of things.” Warner-Maron Trial Test. 538. She
was “concerned looking at the busted sticker, because of the
inference of the word busted.” Id. Specifically, she testified
that “[b]usted does not have a positive connotation. It’s
strictly negative. It infers something is broken. It could also
infer bankruptcy. It can infer arrest. There’s no positive way
to interpret the word busted.” Id. (emphasis added). In her
expert opinion, a sticker:
with the red word busted as the principle [sic] focus
. . . being wor[n] on the uniform of employees at
chest level, . . . the nursing home resident would see
that sticker, see that word busted and could easily
become agitated, upset, worried, concerned about the
inference of that word busted being [used] by their
caregiver.
5
Id. at 538–39. Warner-Maron was not only concerned that the
BUSTED sticker could cause harm to the residents; she was
also concerned that it could instigate harm by the residents,
testifying that the residents might “become upset by this
sticker and become agitated and even combative towards the
caregivers . . . because of the implications of the wording on
the sticker.” Id. at 548; see also id. (“[Y]ou don’t want your
residents agitated and striking out at the very caregivers that
are providing care.”).
According to Warner-Maron, because each BUSTED
sticker identified a HealthBridge facility, the residents would
infer that the care centers “violated some law,” which
violation “could potentially cause that resident to have to be
moved.” Id. at 539. The consequences of such an inference
can be dire. During her multi-decade career, Warner-Maron
personally observed “transfer trauma,” which occurs when
“someone who’s used to being in a facility” is “evacuated to
another facility” and experiences “difficulty adjusting.” Id. at
547. Transfer trauma causes, in turn, “an increase in the risk
of death, . . . depression and psychiatric harm” among
nursing-home residents. Id. She emphasized that the fear is
“very problematic for people” who know “they can’t return to
an independent life in the community” and who are thus
“dependent upon a facility to maintain their safety and care.”
Id. Based on her experience, transfer trauma can occur when
a resident is faced with the mere “threat of a facility being
closed.” Id. (emphasis added).
The Board did not rebut any of the aforementioned
testimony. HealthBridge had the burden to demonstrate “only
a likelihood of, not actual, disruption or disturbance” to
justify barring its employees from wearing the BUSTED
sticker in patient-care areas. Brockton Hosp., 294 F.3d at
104; see also Baptist Hosp., 442 U.S. at 781 n.11 (“a hospital
6
may overcome the presumption by showing that solicitation is
likely either to disrupt patient care or disturb patients”
(emphasis added)). The Board has long recognized that a
healthcare facility is under no obligation to “wait for the
awful moment when patients or family are disturbed by a
button before it may lawfully be restricted.” Sacred Heart
Med. Ctr., 347 N.L.R.B. 531, 533 (2006), vacated on other
grounds by Wash. State Nurses Ass’n v. NLRB, 526 F.3d 577
(9th Cir. 2008). In my view, HealthBridge’s submission—the
uncontroverted testimony of two healthcare professionals
explaining why the particulars of the BUSTED sticker were
likely to upset HealthBridge residents to the point of an
“increase in the risk of death, . . . depression and psychiatric
harm”—plainly satisfied this burden. Warner-Maron Trial
Test. 547. Short of allowing the BUSTED stickers to in fact
harm a resident, I cannot think what HealthBridge could have
done other than ban the stickers in patient-care areas. See
also Baylor Univ. Med. Ctr. v. NLRB, 662 F.2d 56, 62 (D.C.
Cir. 1981).
II.
Notwithstanding the uncontroverted testimony, the Board
found that HealthBridge failed to establish the BUSTED
sticker would likely disturb or disrupt its residents.
HealthBridge Mgmt., LLC, 360 N.L.R.B. No. 118 (May 22,
2014). In so doing, it concluded that (A) Crutchfield’s
testimony was based on her mere speculative belief and
conjecture; (B) HealthBridge’s purported concern for its
residents was belied by letters it sent informing them of a
labor dispute; and (C) Warner-Maron provided only
speculative, after-the-fact testimony about the sticker’s likely
effect on residents. See id. The majority agrees, relying (at
least in part) on our standard of review. Granted, substantial-
evidence review is “limited” and “deferential.” Maj. Op. 15.
7
But it has never been “so deferential that the court will merely
act as a rubber stamp for the Board’s conclusions.” Titanium
Metals Corp. v. NLRB, 392 F.3d 439, 445 (D.C. Cir. 2004).
Indeed, “[w]hen the Board’s findings lack . . . support in the
record, the reviewing courts must set them aside, along with
the orders of the Board that rest on those findings.” Baptist
Hosp., 442 U.S. at 782. Properly understood, “the substantial
evidence test requires a case-by-case analysis and a review of
the whole record” and it “requires a reviewing court to take
into account whatever in the record fairly detracts from the
Board’s conclusions.” Wash. State Nurses Ass’n, 526 F.3d at
580 (quotation marks omitted). At bottom, “[w]e review the
Board’s application of the law to the facts for
reasonableness.” S. New England Tel. Co. v. NLRB, No. 11-
1099, 2015 WL 4153873, at *2 (D.C. Cir. July 10, 2015).
The majority’s analysis, which largely tracks that of the
Board, allows the Board to apply “the ‘special circumstances’
exception in an unreasonable way.” Id. at *3. By repeating
many of the same factual, legal and analytical errors (while
adding a few of its own), my colleagues endorse the Board’s
placing of “an unreasonably high and unrealistic burden” on
all healthcare facilities, one that would require them to wait
and see whether union activity in fact harms its residents
before prohibiting the same in patient-care areas.
HealthBridge Mgmt., LLC, 360 N.L.R.B. No. 118
(Miscimarra, concurring in part and dissenting in part). I
agree with the dissenting Board member that the Board’s
decision defies “experience, intuitive reasoning and common
sense.” Id.; see also S. New England Tel. Co., 2015 WL
4153873, at *1 (“Common sense sometimes matters in
resolving legal disputes.”). And on further examination, the
reasons on which my colleagues rely collapse under their own
weight.
8
A.
My colleagues discredit Crutchfield’s belief that
“residents who saw the stickers would not understand this was
related to a labor matter and might fear the Centers had been
convicted of a crime,” observing that the stickers state that
HealthBridge had been busted by the “National Labor Board
For Violating Federal Labor Law.” Maj. Op. 15–16
(emphases in original) (quotation marks omitted). I believe
their skepticism is unfounded. The record is replete with
evidence documenting the extraordinary difficulties that
nursing-home residents face, “both on the physical and on the
cognitive aspect.” Warner-Maron Trial Test. 542; see also,
e.g., id. at 538–40, 547; Crutchfield Trial Test. 602–06. In
my view, it is wholly unreasonable to presume that elderly
residents who depend on staff “to bathe, dress, feed, toilet”
and “turn” them can appreciate the difference between a
violation of the National Labor Relations Act and a violation
of any other law. Warner-Maron Trial Test. 541. Simply
because my colleagues understand that “[a]n employer’s
violation of labor law is quite different from a criminal
conviction” does not mean that elderly, ill residents—
assuming they are physically able to read—can appreciate the
difference. Maj. Op. 16.
Even if we assume that HealthBridge’s residents have a
nuanced understanding of federal law, the majority mistakes
the gravamen of Crutchfield’s concern. She did not fear that
HealthBridge’s residents would misunderstand the substance
of an alleged legal violation (i.e., criminal law, labor law or
something else), or even the victim thereof (i.e., a resident, an
employee or someone else). Rather, she was plainly
concerned that the BUSTED stickers would cause fear about
the consequences of an alleged legal violation—i.e., whether
a resident would wonder if HealthBridge’s being “BUSTED”
9
would “impact[] the care that I’m receiving?” Crutchfield
Trial Test. 606. This concern is the same from a resident’s
perspective whether HealthBridge was convicted of a crime,
in bankruptcy proceedings or even liable for a labor-law
violation. And the unrebutted testimony from Warner-Maron
indicates that Crutchfield’s concerns were well-founded: “Q.
. . . So as a patient I would be concerned I’m going to lose
care, correct? A. Lose care, lose safety, lose . . . the security
of that facility. Yes.” Warner-Maron Trial Test. 558.
B.
My colleagues also find that the Board reasonably
concluded it was “irrational” for HealthBridge “to assume that
residents would become distraught and traumatized by a two-
and-a-half inch, ten-word sticker” but “would be reassured by
[its] repeated and detailed letters . . . threatening an imminent
Union strike.” Maj. Op. 16. Their conclusion, I fear, both
discounts the impact of the BUSTED stickers and exaggerates
HealthBridge’s letters and, in so doing, mistakenly equates
the two. At bottom, “[t]here’s no positive way to interpret”
the BUSTED stickers, Warner-Maron Trial Test. 538, while
HealthBridge’s letters were intended to reassure its residents.
Undoubtedly, HealthBridge’s correspondence could have
adopted a more neutral tone regarding the labor dispute. But
neither the tone of HealthBridge’s words nor my colleagues’
characterization of the letters as “drafted exceptionally
poorly,” Maj. Op. 16, detracts from the underlying message
HealthBridge wanted its residents and their families to hear,
especially in the two letters it sent before the BUSTED sticker
appeared:
First Letter:
 “As you may know, [HealthBridge] has been in
negotiations with [the Union] . . . . We have
10
approached these negotiations with an open
mind and a sincere desire to reach an agreement
with the Union that will enable us to continue
providing the highest quality care and services
to you and your fellow residents.”
 “We need to negotiate a contract that reflects the
new reality of our industry to ensure that you
continue to receive the best possible care.”
 “Let me assure you that our labor negotiators
are doing everything possible to avert the
possibility of a strike . . . . Since this Union has
a long history of calling strikes, however, we
take this matter very seriously and are well
prepared in the event the Union moves forward
with plans for a strike . . . .”
 “We are working with the Department of Public
Health and have developed a comprehensive
contingency plan to ensure that you continue to
receive excellent clinical care and services
without interruption in the event of any strike,
work stoppage or other labor dispute. We have
mobilized our regional operational and clinical
teams and are ready with a full complement of
replacement staff to manage and run our Center.
All food and medical supplies will be available
to meet each resident’s individual clinical and
nutritional needs. We also have retained a
special security team to ensure that you and
your family are comfortable and secure.”
11
 “[I]f the Union should call a strike, our Center’s
operations will continue as usual—including
admitting new residents.”
1st Ltr. from Administrators to HealthBridge Resident and
Family Member 1 (March 2011) (emphases added).
Second Letter:
 “We need to negotiate a new agreement that
reflects the reality of our industry today so we
can continue providing the highest quality care
to you and your fellow residents.”
 “Thus far, we have not received a strike notice
from the Union . . . . Please be assured that we
do not want a strike at our Center and our
negotiations team is doing everything possible to
avert the possibility of a strike.”
 “[I]f the Union should call a strike as they
threatened to do in the very first negotiations
meeting, we want you to know that we are fully
prepared to continue all of our Center’s normal
operations.”
 “As we anticipated, due to the current economic
climate, we have had a tremendous response to
our recruitment of replacement staff in the event
we need them. You can feel confident that, if
any kind of strike, work stoppage or other labor
dispute should occur, we will have a full
complement of highly-qualified [sic]
replacement staff to run our Center.”
12
2d Ltr. from Administrators to HealthBridge Resident and
Family Member 1 (March 2011) (emphases added) (underline
in original). Simply put, HealthBridge informed its
residents—truthfully—that the Union had threatened to strike
but that HealthBridge was nonetheless “fully prepared to
continue all . . . normal operations.” 2d Ltr. at 1. Contrast
this positive message with the image that greeted the “elderly,
vulnerable folks” living at HealthBridge’s facilities,
Crutchfield Trial Test. 605, on the morning of March 25,
2011:
Given the emotional and psychological damage nursing-
home residents risk if they perceive the “threat of a facility
being closed,” Warner-Maron Trial Test. 547, HealthBridge’s
commitment to “ensure that [its residents] continue to receive
excellent clinical care and services without interruption in the
event of any strike, work stoppage or other labor dispute,” 1st
Ltr. at 1, is consistent with common sense and with
13
HealthBridge’s caring concern for them.3 That the letters
placed HealthBridge’s negotiating position in a favorable
3
The majority notes that “HealthBridge’s own expert
conceded on cross-examination that communications to residents
that imply that they might lose the care of . . . their direct care
provider could constitute emotional abuse.” Maj. Op. 16–17
(ellipses in original) (quotation marks omitted). Read in context,
however, her testimony did not suggest an equivalency between
HealthBridge’s letters and the BUSTED sticker:
Q. So if I told a patient hey, tomorrow none of the
[caregivers] that you . . . know, are familiar with, are
going to be here and there’s going to be brand new
people taking care of you—
A. It would be upsetting. I don’t know if that would
rise to the level of emotional abuse, but depending
on that individual, if that individual had a
relationship with particular aides and the loss of that
aide or those aides would cause them to become
emotionally in despair, then for that individual it
may be a form of abuse, yes.
Q. I mean it would be emotionally abusive, don’t you
think, if I went to bed one night with my [caregiver],
and the next morning I woke up, and she wasn’t
there and some stranger was there?
A. Well, that’s the nature of working in institutions.
You don’t always have the same people taking care
of you. But . . . people move in and out of the
industry frequently. We try to minimize turnover
whenever we can, but we don’t want to force the
turnover of people. We don’t want to cause people
to feel that the people that they’ve associated with
for periods of time are going to be lost to them for
some purposeful reason.
Warner-Maron Trial Test. 560. In other words, Warner-Maron
acknowledged that some nursing-home residents experience
14
light does not mean that treating them differently from the
BUSTED sticker would “sanction a blatant double standard in
favor of employers.” Maj. Op. 17. Far from it. Even the best
intentions—and there is no indication that HealthBridge had
anything but good intentions—are not always expressed with
superior draftsmanship.
Moreover, the majority sweeps past the wholly
unrebutted expert testimony (which makes the self-evident
point) that there is plainly a difference between the BUSTED
sticker and a letter addressed to a resident. See Warner-
Maron Trial Test. 562. The sticker is “very visible.” Id. This
“visible threat on the clothing of the aide,” which is “in close
proximity to the resident,” is necessarily not removed as is
“opening . . . and reading a letter.” Id. Further, any potential
harm caused by the letters’ content was blunted because
“often the letter goes to the family member rather than to the
resident, or if it’s brought to the resident it’s brought by the
social worker who’s helping that resident read the letter and
not just delivering the letter and walking away.” Id.
In my view, the unrebutted record evidence compels the
conclusion that HealthBridge, in sending its letters and in
ordering the removal of the BUSTED sticker, acted out of
concern for its residents and “likel[y]” avoided an “actual[]
disruption or disturbance” at its nursing-care facilities.
Brockton Hosp., 294 F.3d at 104; see also Baptist Hosp., 442
distress because their caregivers are at times temporary but that it is
impossible to avoid this type of stress in all instances. Warner-
Maron’s testimony on this point contrasts sharply with her opinion
that “the wording of [the BUSTED sticker], and the type and the
red writing of it, with the gavel underneath, is easily viewed as an
implied threat that something is amiss, that something is wrong,
that there’s something threatening.” Id. at 559.
 15
U.S. at 781 n.11. It should be lauded—not rebuked—for its
efforts.
C.
Finally—and perhaps most remarkably—my colleagues
assert that HealthBridge “failed to adduce evidence showing
the stickers were objectively disturbing.” Maj. Op. 17.4 As
discussed, both Crutchfield and Warner-Maron provided
extensive testimony regarding the damage the BUSTED
sticker would have caused HealthBridge’s residents. The
majority’s criticism of their testimony does not withstand
scrutiny.
The majority, like the Board, faults Crutchfield for not
basing her testimony on “actual interactions with or
comments from residents, family members, or employees.”
4
My colleagues contrast the evidence here with that in Baptist
Hospital, a Supreme Court case in which hospital employees
testified that “anytime we do anything that lets a patient or [his]
family see that we have our mind on anything but patient care, this
is very disruptive to the patient and sometimes affects the patient’s
ability to recover.” 442 U.S. at 783 (emphasis added). But there is
no daylight between Baptist Hospital and HealthBridge in this
regard. The Baptist Hospital employees’ testimony applies fully to
the residents of the HealthBridge facilities. I fail to see how
requiring Warner-Maron to question HealthBridge residents to
gauge the severity of their impairments would be constructive. Cf.
Maj. Op. 19. Rather, the testimony the Supreme Court highlighted
in Baptist Hospital underscores that all patients and all families,
including those at HealthBridge facilities, “need a restful,
uncluttered, relaxing, and helpful atmosphere, rather than one
remindful of the tensions of the marketplace in addition to the
tensions of the sick bed.” 442 U.S. at 783 n.12.
16
Maj. Op. 18.5 It rejects HealthBridge’s argument that such
evidence would require it to demonstrate “actual harm or a
disturbance to patients.” Maj. Op. 19 (quotation mark
omitted). But my colleagues make no attempt to explain the
difference between “actual harm or a disturbance” (which,
they admit, cannot be required) and “specific experience with
a patient, family member, or employee” or “specific evidence
of harm or likelihood of harm to patients from employees
wearing the sticker” (which, in their view, is required). Id. In
my view, HealthBridge did all it could short of waiting “for
the awful moment when patients or family are disturbed by a
button” before acting to prevent potentially serious injury to,
or distress, its residents. Sacred Heart Med. Ctr., 347
5
The majority also criticizes Crutchfield as merely “an
attorney who testified that her duties are to oversee the
development of labor relations strategy, human resources, and
implementation of collective bargaining agreements.” Maj. Op. 18
(quotation marks omitted). I note that the Supreme Court, in
Baptist Hospital, relied not only on medical witnesses but also on
the “Hospital’s Vice President for Personnel Services,” who
testified that the rule limiting union activity in that case “was
adopted because of concern about the ill effects of union
organizational activity on patients” and that “[t]he general purpose
of the rule . . . [wa]s to protect the patients and their families from
the disquiet that might result if they perceived that the Hospital’s
staff had concerns other than the care of patients.” 442 U.S. at
782–83. At a minimum, the High Court’s reliance on a non-
medical witness suggests that the testimony of a ten-year
HealthBridge employee who works “very closely with the centers”
and is “in the centers very often,” “walk[ing] the floors” and
“spend[ing] time meeting” with employees, managers and
administrators should not be so easily cast aside. Crutchfield Trial
Test. 602–03.
17
N.L.R.B. at 533.6 The majority’s position may force hospitals
and healthcare facilities to inch closer and closer to actual
6
My colleagues fault Crutchfield for failing to “differentiate
the ‘busted’ stickers from other insignia HealthBridge had
permitted in the past.” Maj. Op. 18. They ignore Warner-Maron’s
testimony on that precise issue:
Q. . . . did you have the same expert opinion regarding
any of the other buttons or stickers that you
reviewed?
A. No, I had no trouble with any of those other[]
stickers.
Q. And why is that?
A. The other stickers don’t have that wording. They
don’t have that connotation. They don’t threaten.
Even the exhibit 9 with the Grinch, the intent is to of
course bring attention to the Union, but it’s not
threatening. It’s a picture of a cartoon character. So
I didn’t find anything in the other stickers in any way
to be threatening, to exhibit any kind of potential for
emotional abuse on the part of a resident, none of
these, just the one that says busted in red with the
gavel and the words underneath it inferring that the
nursing home has violated a law.
Q. And what about General Counsel’s exhibit 4, the one
that says fight in it, does that make any difference?
A. I think the way that the fight is, it’s couched between
a vision, a fight and union, and I did not take away
. . . the inference that this sticker meant that the aide
should fight or that there’s an ongoing fight going
on. So I think the way that the word fight is
positioned between vision and union does not have
anywhere near the same effect as the sticker that
we’re talking about with the word busted.
18
harm to generate evidence “specific” enough to defend
against an unfair-labor-practice charge. Maj. Op. 19.
The majority’s rejection of Warner-Maron’s testimony
fares no better. Like the Board, my colleagues demand that
Warner-Maron’s opinion be “informed by actual information
about or experience with the facilities, their staff, or their
patients or by speaking to patients, family members or care
givers.” Maj. Op. 19 (quotation marks omitted). Their
demand misconstrues elementary principles of expert
testimony.7 “Unlike an ordinary witness, an expert is
permitted wide latitude to offer opinions, including those that
are not based on firsthand knowledge or observation.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592
(1993) (emphasis added) (citation omitted); see also United
States v. Mejia, 597 F.3d 1329, 1339 (D.C. Cir. 2010) (same);
Peteet v. Dow Chem. Co., 868 F.2d 1428, 1432 (5th Cir.
1989) (“A personal examination of the person or object of the
expert’s testimony is not required”); Sementilli v. Trinidad
Corp., 155 F.3d 1130, 1134 (9th Cir. 1998); Sweet v. United
States, 687 F.2d 246, 249 (8th Cir. 1982); DAVID H. KAYE ET
AL., THE NEW WIGMORE: A TREATISE ON EVIDENCE, § 4.2
(expert witnesses “are exempted from the traditional personal-
Warner-Maron Trial Test. 540–41. As with much of
HealthBridge’s evidence, the Board made no attempt to rebut it,
instead ignoring or dismissing it. Our responsibility, however, is to
“take into account whatever in the record fairly detracts from the
Board’s conclusions.” Wash. State Nurses Ass’n, 526 F.3d at 580
(quotation marks omitted).
7
The Board, per regulation, generally applies the Federal
Rules of Evidence. See 29 C.F.R. § 102.39 (“Any . . . proceeding
shall, so far as practicable, be conducted in accordance with the
rules of evidence applicable in the district courts of the United
States . . . .”).
19
knowledge requirements, and may therefore give opinions
without personal knowledge of the underlying facts”); 3 D.
LOUISELL & C. MUELLER, FEDERAL EVIDENCE § 389, at 657
(1979) (FED. R. EVID. 703 “diminishes the need for the expert
to have firsthand knowledge concerning the matters in
issue”).
Indeed, “firsthand observations” constitute but one of
“three categories of materials” that “may form the basis for
expert judgments.” DAVID H. KAYE ET AL., THE NEW
WIGMORE: A TREATISE ON EVIDENCE, § 4.1. The other two
include reviewing materials presented at trial and materials
furnished outside court. FED. R. EVID. 703 advisory
committee’s note (1972). Warner-Maron viewed the
BUSTED sticker before trial and again while testifying,
considered the indisputably negative word BUSTED and the
other inflammatory imagery on the sticker,8 applied her
expertise and opined that the BUSTED sticker was likely to
distress HealthBridge’s residents. Her testimony, then, fits
comfortably within the accepted scope of expert opinion.
Rather than correcting the Board’s incorrect application of
evidentiary rules, my colleagues endorse it. See Maj. Op. 20
(Warner-Maron’s “speculation, untethered as it was from any
patient or staff interviews or visits to the Centers, was of little
use in determining why these stickers, in contrast to the
insignia nurses have worn in the past, merited prohibition”).9
8
Both the Board and the majority criticize Warner-Maron
because she searched Google for the word “busted.” See Maj. Op.
20 & n.7 (quoting Pet’r’s Reply Br. 10 n.2). Neither, however,
suggests that there is any “positive way to interpret the word
busted.” Warner-Maron Trial Test. 538.
9
The majority suggests that my point about Warner-Maron’s
expert testimony “is misplaced,” noting that the Board “was entitled
to determine the weight it would accord Warner-Maron’s
20
The inescapable implication of the majority’s conclusion
is this: because HealthBridge allowed its employees to display
other union insignia in patient-care areas in the past, it had to
identify a resident (or a family member) who had seen the
BUSTED sticker (or perhaps similarly inflammatory union
insignia) and reacted adversely to it in order to prohibit its
employees from wearing the BUSTED sticker. The Supreme
Court,10 this Court11 and the Board12 have made plain that this
is not the law.
evidence.” Maj. Op. 20 (emphasis in original). But
notwithstanding the “weighing of expert opinions is the province of
the ALJ, there must be some indication in the ALJ’s decision that
the weighing was conducted in a reasoned manner.” Peabody Coal
Co. v. Dir., Office of Workers’ Comp. Programs, 972 F.2d 178, 182
(7th Cir. 1992). Indeed, “it makes little sense to use scientific
standards in performing the gatekeeping function [at the
admissibility stage] and then permit the dispute on the merits to be
resolved by arbitrary considerations.” Peabody Coal Co. v.
McCandless, 255 F.3d 465, 469 (7th Cir. 2001). In my view,
discounting out-of-hand expert testimony because it was not based
on first-hand observations is arbitrary, especially in the absence of
contrary testimony. For this reason, my colleagues’ plea for
deference rings hollow. See also Oppenheim v. Finch, 495 F.2d
396, 398 (4th Cir. 1974) (vacating and remanding because, inter
alia, “[t]h[e] expert judgment is neither met nor contradicted by any
other expert judgment”). The ipse dixit label the majority attempts
to fix on Warner-Maron’s testimony, see Maj. Op. 20, is a much
closer fit on the Board—the decision-maker whose only reasoning
is “because we say so.”
10
Baptist Hosp., 442 U.S. at 781 n.11 (“[A] hospital may
overcome the presumption by showing that solicitation is likely
either to disrupt patient care or disturb patients.” (first emphasis
added)).
11
Brockton Hosp., 294 F.3d at 104 (“[T]he Hospital had to
show only a likelihood of, not actual, disruption or disturbance.”).
21
III.
I end where I began. The Supreme Court has commented
that “the patient and his family . . . need a restful, uncluttered,
relaxing, and helpful atmosphere, rather than one remindful of
the tensions of the marketplace in addition to the tensions of
the sick bed.” Baptist Hosp., 442 U.S. at 783 n.12. Then–
Chief Justice Burger, writing separately in Baptist Hospital,
believed that “no ‘evidence’ is needed to establish the
proposition that the primary mission of every hospital is care
and concern for the patients and that anything which tends to
interfere with that objective cannot be tolerated.” Id. at 791
(Burger, C.J., concurring in judgment) (emphasis added).
And more than three decades after Baptist Hospital, Warner-
Maron, in explaining the nature of the caregiver/nursing-home
resident relationship, underscored why care and concern for
residents must take priority:
[B]ecause of the intimate nature of the interaction
between the caregiver and the resident, the caregiver
has to be able to have a rapport with that resident.
That resident has to be able to trust, in their most
naked form, because they are in their most naked
form, during most of this care, that the caregiver will
provide safe, competent care to them. So it’s a very
personal relationship between the [caregiver] and the
resident.
Warner-Maron Trial. Test. 544.
12
Sacred Heart Med. Ctr., 347 N.L.R.B. at 533 (“[A] hospital
need not wait for the awful moment when patients or family are
disturbed by a button before it may lawfully be restricted.”).
22
The Union’s BUSTED sticker display interfered with this
intimate and personal relationship in a callous and dangerous
manner. HealthBridge acted reasonably, legally and
compassionately to prohibit its employees from wearing the
BUSTED sticker in patient-care areas. In my view, it met its
burden before the Board as well as its burden—before us—of
establishing that the Board’s contrary conclusion fails the
substantial-evidence test. Accordingly, I respectfully dissent.