Care One at Madison Avenue v. NLRB , 832 F.3d 351 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2016 Decided August 12, 2016
No. 15-1010
CARE ONE AT MADISON AVENUE, LLC, DOING BUSINESS AS
CARE ONE AT MADISON AVENUE,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
1199 SEIU UNITED HEALTHCARE WORKERS EAST,
INTERVENOR
Consolidated with 15-1025
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 petitioner. With her
on the briefs were Paul D. Clement, C. Harker Rhodes, IV,
and Andrew N. Ferguson.
Milakshmi V. Rajapakse, Attorney, National Labor
Relations Board, argued the cause for respondent. With her
on the brief were Richard F. Griffin, Jr., General Counsel,
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Jennifer Abruzzo, Deputy General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, Robert J. Englehart,
Supervisory Attorney, and Douglas Callahan, Attorney.
Katherine H. Hansen argued the cause for intervenor.
With her on the brief was William S. Massey.
Before: ROGERS, PILLARD and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: The National Labor Relations
Board (the Board) determined that petitioner Care One at
Madison Avenue (Care One or the Company) committed a
series of unfair labor practices in an effort to prevent the
certification of a union at its nursing home and rehabilitation
facility in Morristown, New Jersey. After the union lost a
representation election in March 2012, it filed objections and
charges of unfair labor practices with the Board. The Board
held that Care One had interfered with employees’ protected
activity and discriminated against union-eligible employees in
violation of the National Labor Relations Act (the Act) by
instituting a system-wide, discretionary benefits increase
shortly before a scheduled representation election and
denying the increase to the union-eligible employees. The
Board also concluded that the company unlawfully interfered
with its employees’ right to organize by distributing to
employees eligible to vote in the upcoming election a
threatening leaflet associating unionization with job loss;
presenting a slideshow depicting employees, without their
consent, as if they supported the Company’s antiunion
campaign; and issuing a post-election memorandum
reiterating the company’s workplace violence policy, which
the Board concluded could reasonably be read in context to
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threaten reprisal for protected union activity. Care One at
Madison Ave., LLC d/b/a Care One at Madison Ave. & 1199
SEIU, United Healthcare Workers E., 361 N.L.R.B. No. 159,
2014 WL 7339612 (Dec. 16, 2014).
We deny Care One’s petition for review and grant the
Board’s cross-application for enforcement of its order on each
of the charges.
I. Background
The Company’s Morristown, New Jersey, nursing home,
Care One at Madison Avenue, is part of a network of
approximately twenty nursing and rehabilitation facilities that
Care One Management runs across the state. Employees at
those facilities share a common health insurance plan.
Effective January 1, 2012, Care One Management modified
its company-wide plan, reducing benefits and increasing costs
for its employees.
As Care One Management was eliminating benefits,
employees at the Madison Avenue facility were organizing.
On January 23, 2012, 1199 SEIU United Healthcare Workers
East (the Union) filed a petition for an election to represent
full-time and regular part-time non-professional employees at
that location.
Meanwhile, Care One decided it would reverse cuts it
had made to its health insurance plan, thereby restoring many
benefits to their pre-2012 levels. The Company announced
the restoration of benefits in a March 5, 2012, memorandum,
just three weeks shy of the scheduled representation election,
with the restoration to become effective the day of the
election. Care One withheld the March 5 memorandum only
from union-eligible employees without any explanation, and
did not tell the excluded employees when or whether their
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benefits would be restored. Care One facilities administrator
George Arezzo, however, posted the memorandum at the
Madison Avenue facility where union-eligible employees
could—and did—see it. When the excluded employees asked
Arezzo about the benefits, he refused to discuss the matter
with them. The sole reason the Company offers for its
targeted exclusion of the union-eligible employees is “the
pendency of the representation election.” J.A. 93, 187.
In the months leading up to the election, Care One
campaigned against the Union. The Company distributed
leaflets to the Union-eligible employees, which told them to
“Get the Facts!” J.A. 98. One of those leaflets directed
employees to “think about what you need to do when you
vote” and listed a series of questions for employees to
consider, including, “Do you want to give outsiders the power
to jeopardize your job by putting you out on strike?” Id.
(emphasis in original). The answer, the company emphasized
in bold, oversized type, was “NO.” Id.
On March 21, two days before the election, the Company
held a mandatory meeting for all union-eligible employees.
At the meeting, Arezzo made the Company’s final argument
against the Union. He told the employees that Care One was
a “family” that would work better together without a union.
J.A. 41. At the end of the meeting, Arezzo showed the
employees a slideshow that reiterated the “we are family”
theme. The slideshow included images of many of the union-
eligible employees. Care One management had represented
when it took the employees’ photographs that they were for a
Valentine’s Day activity, a patient-care program, and a
display case in the common space of the facility.
Management never sought or received consent from
employees to use their photographs in the antiunion campaign
slideshow, nor did it make any disclaimer that the
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presentation did not necessarily reflect the views of the
employees depicted. In the slideshow, the images of
employees were set against a recording of Sister Sledge
singing “We are Family.” When the slideshow concluded,
Arezzo reportedly said to the employees, “Please vote no,
give management a chance, we’re a family, we’re a team.”
J.A. 55.
When the Union held the election two days later, fifty-
seven employees voted for union representation and fifty-
eight voted against.
On March 26, three days after the election, Arezzo posted
a memorandum entitled “Teamwork and Dignity and
Respect” on the employee bulletin board. Arezzo’s
memorandum addressed the Madison Avenue facility’s
employees: “Now that the NLRB Election is behind us,” he
wrote, “I was hoping that everyone would put their
differences behind them and pull together as a team.” J.A.
124. Arezzo asserted in the memorandum that he had heard
that “a few employees are not treating their fellow team
members with respect and dignity” and noted “disturbing
reports that some of our team members have been
threatened.” Id. He went on to say that “employees have a
right to make up their own minds regarding the union” and
that he “respect[ed] the right employees have to be for or
against the union,” id., but cautioned that those rights “do not
give anyone the right to threaten or intimidate another team
member, for any reason,” id. Arezzo attached to the
memorandum Care One’s pre-existing Workplace Violence
Prevention policy. There was in fact no evidence of any
threats or intimidation, or even reports thereof, leaving
employees to wonder what communications or activities
surrounding the union representation election the management
thought the referenced disciplinary policy encompassed.
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The Union filed several objections to the unsuccessful
election. The Board upheld most of those objections and
ordered a new election. Care One at Madison Avenue, Case
22-RC-072946, 2012 WL 4049006 (N.L.R.B. Sept. 13, 2012).
The Union also filed several unfair labor practice charges
against Care One, prompting the Board’s Acting General
Counsel to bring the charges at issue in this case. The second
representation election awaits the resolution of these unfair
labor practice charges.
The parties waived an in-person hearing and instead
submitted a stipulated record. Based on that record, an ALJ
found that Care One’s challenged antiunion conduct before
and immediately following the representation election
violated sections 8(a)(1) and 8(a)(3) of the Act. 29 U.S.C.
§ 158(a)(1) & (a)(3). In a December 16, 2014, Decision and
Order, the Board upheld the ALJ’s findings and conclusions,
with the exception that Member Johnson dissented from the
Board’s holding that the post-election memorandum could
reasonably be read as unlawfully threatening protected
activity.
Care One petitioned this court for review of the Board’s
order, the Board cross-applied for enforcement, and the Union
intervened in support of the Board. We have jurisdiction over
the petition and application under sections 10(e) and 10(f) of
the Act. 29 U.S.C. §§ 160(e), (f).
II. Analysis
When workers begin to organize, their employer may
take many steps to convince them not to form a union. But no
employer has completely free rein. The National Labor
Relations Act, interpreted in decades of precedent of the
Board and the courts, strikes a balance between the
prerogatives of employers and the rights of employees.
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Because “the NLRB has the primary responsibility for
developing and applying national labor policy,” NLRB v.
Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990), we will
“uphold the Board’s legal determinations so long as they are
neither arbitrary nor inconsistent with established law,”
Tualatin Elec., Inc. v. NLRB, 253 F.3d 714, 717 (D.C. Cir.
2001). On questions of fact, the Board’s findings are
“conclusive” if “supported by substantial evidence on the
record considered as a whole.” 29 U.S.C. § 160(e); see
Universal Camera Corp. v. NLRB, 340 U.S. 474, 490 (1951).
Applying those standards, we grant the Board’s
application for enforcement of its order.
a. Pre-election Benefit Grant to All Except Union-Eligible
Employees
An employer must refrain from interfering with or
discouraging the exercise of protected labor rights by either
granting or withholding a benefit. Whether interference is
accomplished by dangling a carrot or brandishing a stick, the
Supreme Court has long counseled that it is interference all
the same. See NLRB v. Great Dane Trailers, Inc., 388 U.S.
26, 32 (1967); NLRB v. Exchange Parts Co., 375 U.S. 405,
409-10 (1964). What the Act requires is that the employer
make its benefits decisions “precisely as it would if the union
were not on the scene.” Federated Logistics & Operations v.
NLRB, 400 F.3d 920, 927 (D.C. Cir. 2005) (quoting Perdue
Farms, Inc. Cookin’ Good Division v. NLRB, 144 F.3d 830,
836 (D.C. Cir. 1998)). Section 7 of the NLRA protects a
range of employee rights to form, join, and support labor
unions and engage in bargaining and other concerted activities
to advance their interests in the workplace. 29 U.S.C. § 157.
An employer may not use benefit eligibility as a means of
discouraging employees from participating in a representation
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election. See 29 U.S.C. § 158(a)(1). And it may not, without
valid reason, treat employees differently in the promise or
offer of important employee benefits based on the employees’
participation in protected activities. See 29 U.S.C.
§ 158(a)(3).
When Care One timed the announcement of its
discretionary, one-time, system-wide reinstatement of a
valued healthcare benefit just three weeks before a scheduled
representation election, withheld that benefit from only its
union-eligible employees, and offered “the pendency of the
representation election” as its sole reason, it violated the Act.
The Company thereby discouraged union membership in
violation of section 8(a)(1), and discriminated against union-
eligible employees in regard to a term of employment, in
violation of section 8(a)(3).
Substantial evidence supports the Board’s conclusion that
the way in which Care One reinstated the health plan
unlawfully interfered with its employees’ right to organize in
violation of Section 8(a)(1). As we have explained, “an
employer may not withhold a wage increase that would have
been granted but for a union organizing campaign.”
Federated Logistics, 400 F.3d at 927. By the same token,
“implementation of a benefit before a scheduled election, . . .
without a showing of business justification, has itself been
deemed evidence of improper motive.” Pedro’s, Inc. v.
NLRB, 652 F.2d 1005, 1009 n.11 (D.C. Cir. 1981). Section
8(a)(1) prohibits an employer from conferring or withholding
a benefit “with the express purpose of impinging upon
[employees’] freedom of choice for or against unionization”
where such action “is reasonably calculated to have that
effect.” Exchange Parts, 375 U.S. at 409.
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The circumstances here are telling: Three weeks before
the scheduled election, the Company decided to grant a
system-wide benefit, but created a targeted exclusion of the
union-eligible employees. And, according to the parties’ Joint
Stipulation of Facts, “[i]t was because of the pendency of the
representation election” that the Employer excluded eligible
voters from its March 5, 2012, notification to all other
employees that “they would receive the improvements in the
health insurance plan and that their employee contributions
would be reduced on March 23, 2012.” J.A. 93. There is thus
no dispute that Care One would have extended the benefit to
its union eligible employees were it not for their protected
activity.
The particulars of the timing further support the Board’s
finding of unlawful motive. The Company had eliminated the
benefits months earlier, and its decision to reinstate them was
a one-time, wholly discretionary choice. Employees had been
objecting to the benefits cut all along, yet Care One chose
early March to announce its decision to restore them. There is
no evidence that the timing was part of any regularly
scheduled benefits open-season or annual renewal, for
example; the record is devoid of any legitimate business
rationale for the Company’s chosen timing. That timing is
particularly indefensible given that the Company awarded the
benefits retroactive to January, meaning that waiting until
March saved it no money, and making the announcement
before rather than after the election did not ensure earlier
coverage to its employees.
The timing and context, the exclusion of the union-
eligible employees, and the admitted attention to the
upcoming election provide substantial evidence to support the
Board’s determination that Care One unlawfully sought to
10
induce the employees to reject the union in violation of
section 8(a)(1).
Substantial evidence also supports the Board’s
conclusion that, by discriminating with respect to a term of
employment, Care One unlawfully discouraged union
membership in violation of section 8(a)(3). A showing of a
targeted withholding of a significant employee benefit only
from those employees who are in the process of exercising or
are about to exercise protected rights may, without more,
“bear[] ‘its own indicia of intent’” to discourage employee
exercise of those rights. See Great Dane, 388 U.S. at 33
(quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 228
(1963)). Where the Board has shown that the “employer
engaged in discriminatory conduct which could have
adversely affected employee rights to some extent,” the
burden shifts to the employer “to establish that he was
motivated by legitimate objectives since proof of motivation
is most accessible to him.” Id. at 34 (emphasis in original).
Because Care One has made no attempt to show that the
exclusion of union-eligible employees from its system-wide
restoration of benefits was motivated by any legitimate
business objective, the Company failed to meet that burden.
Care One argues that its conduct cannot amount to an
unfair labor practice because it was merely attempting to
navigate in good faith what it views as the Board’s
“incoherent jurisprudence.” Reply Br. of Petitioner 1. The
Company insists that, had it included its union-eligible
employees in the benefits increase, it would have risked a
Board determination that it was seeking to buy the
employees’ votes with the improved benefits in violation of
the Act as interpreted in Exchange Parts, 375 U.S. 405. The
Board’s decision in Noah’s New York Bagels, 324 N.L.R.B.
266, 272 (1997), instructed the company to withhold the
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benefits increase from the union-eligible employees, Care
One argues, while the Board’s decision in In Re Noah’s Bay
Area Bagels, LLC, 331 N.L.R.B. 188, 190-91 (2000), required
that it grant them the increase. Care One vividly complains
that the Board adheres to “Janus-faced” precedent—a
“‘damned if you do, damned if you don’t’ doctrine”—that
puts the Company in an untenable position, Br. of Petitioner
26, 28, 32, and that all it was trying to do was to maintain the
status quo, id. at 23.
In particular, Care One contends that the Board’s
“contradictory precedent” makes it impossible for employers
to make benefits changes during the pendency of a
representation election, id. at 22-23, but neither the Board’s
case law nor ours creates the quandary Care One describes.
Contrary to Care One’s contentions, the Act does not require
a company facing a union election to freeze its operations.
An employer may make regularly scheduled benefits changes
if it does so without treating employees differently based on
their participation in protected activities, and without any
motive of inducing employees to vote against the union. See
Pedro’s, Inc., 652 F.2d at 1008. And where its legitimate
business purpose so directs, an employer may move ahead
with even an unscheduled, discretionary benefits change in
the pendency of a representation election; what it must avoid
is doing so for the purpose of attempting to influence
employees’ votes. See Exchange Parts, 375 U.S. at 409. But
where, as here, an employer, without any legitimate
explanation, schedules a discretionary, one-time benefit
restoration just before an election and excludes from the
benefit only the union-eligible employees, that employer
reasonably may be viewed as attempting to discourage
eligible employees’ support for the union. See Perdue Farms,
144 F.3d at 837.
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It simply is not the case, as the Company argues, that the
Board has applied a per se rule that granting or withholding a
discretionary benefits increase once an election is scheduled
violates the Act, irrespective of the employer’s motive. In all
cases, the question is whether the employer’s benefit decision
was made for legitimate business reasons or because of
protected activity. Under established law, an employer facing
a representation election may, for example, continue to
implement a benefit it had previously planned to offer its
employees before they began organizing. See Pedro’s, Inc.,
652 F.2d at 1008. An employer may have a legitimate reason
in some circumstances for conferring a company-wide benefit
on its employees, including union-eligible employees, during
the pendency of an election, in which case extending the
benefit to union-eligible employees would not be a coercive
offer in violation of the Act. See, e.g., Noah’s Bay Area
Bagels, 331 N.L.R.B. at 190. There is, however, good reason
for the Board’s caution that the “more prudent course” is to
not grant a discretionary benefits increase just before a union
election. Noah’s New York Bagels, 324 N.L.R.B. at 272. Where
an employer lacks a legitimate business reason for giving a
benefit in the run-up to an election, a brief delay until after the
election is a simple way to guard against a finding that the
employer timed the announcement of the benefit in an effort
to influence employees’ voting behavior.
The Company’s only proffered justification for omitting
the union-eligible employees from the benefit was its legally
erroneous view that the Board’s precedent so required. But
reliance on “dubious legal advice” does not excuse an
employer’s discrimination. See St. Francis Fed’n of Nurses
& Health Prof’ls v. NLRB, 729 F.2d 844, 852 (D.C. Cir.
1984); 800 River Rd. Operating Co. v. NLRB, 784 F.3d 902,
910 n.5 (3d Cir. 2015). Unlike in 800 River Road, where the
Board had made no findings as to the employer’s motivations,
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784 F.2d at 907-08, the Board found here that the sole reason
Care One withheld the benefit increase from the union-
eligible employees and no others was to dissuade employees
from voting for the union in the imminent election.
In view of the applicable legal principles and the record
in its entirety, we hold that substantial evidence supports the
Board’s conclusion that Care One’s announcement of its
decision to selectively restore popular benefits was an effort
to discourage union membership in violation of section
8(a)(1) and was discrimination against union-eligible
employees in violation of section 8(a)(3).
b. Misleading Employer Leaflet
The record also contains substantial evidence to support
the Board’s conclusion that employees would reasonably
understand as a threat in violation of section 8(a)(1) the
leaflet’s claim that the union could call a strike and
“jeopardize your job.” Section 7 protects employees’ rights to
engage in concerted activity in the workplace, including their
right to strike. An employer violates section 8(a)(1)’s bar on
interfering with employees’ exercise of their section 7 rights
when it makes “coercive statements that threaten employees
with job loss or plant closure in retaliation for protected union
activities.” Progressive Elec., Inc. v. NLRB, 453 F.3d 538,
544 (D.C. Cir. 2006).
Care One argues that its leaflet instructing employees that
striking could “jeopardize [their] jobs” was accurate and
therefore not a “threat of reprisal” prohibited by section 8(c).
The Act recognizes an employer’s prerogative to
communicate to its employees “any of [the employer’s]
general views about unionism or any of [its] specific views
about a particular union” only insofar as the communications
do not contain a “threat of reprisal or force or promise of
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benefit.” NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969) (quoting 29 U.S.C. § 158(c)); see also Progressive
Elec., 453 F.3d at 544. An employer’s freedom to “make a
prediction as to the precise effects” it expects unionization to
have on the business and its employees is limited to
predictions based on “objective fact[s]” about events beyond
the employer’s control, or a “management decision already
arrived at” before the unionization effort. Gissel Packing,
395 U.S. at 618. Any such employer prediction must also be
“consistent with the law.” Eagle Comtronics, Inc., 263
N.L.R.B. 515, 516 (1982). An employer may truthfully
inform its employees of their rights and duties, and, in
particular, is not required to “fully detail[] the protections”
that a striking employee enjoys in the event of an economic
strike. Id. at 516; see Laidlaw Corp., 171 N.L.R.B. 1366,
1369-70 (1968).
Care One’s leaflet violated those principles because it
failed accurately to characterize the implications of a strike
for employees’ jobs. The leaflet said, “Do you want to give
outsiders the power to jeopardize your job by putting you out
on strike?” J.A. 183. The leaflet overstated the risks to
workers on economic strike, who retain important job
protections: If their jobs have not been filled by
replacements, employees are entitled to full reinstatement
immediately after a strike, or, if their positions have been
filled, “upon the departure of replacements.” Laidlaw, 171
N.L.R.B. at 1369-70. They “remain employees” even where
“their positions are filled by permanent replacements” as long
as the striking employees “unconditionally apply for
reinstatement.” Id. Striking employees are also entitled to
retain their pre-strike seniority when they return to active
status. See, e.g., Olin Mathieson Chem. Corp. v. NLRB, 232
F.2d 158, 160 (4th Cir. 1956), aff’d, 352 U.S. 1020 (1957);
15
Republic Steel Corp. v. NLRB, 114 F.2d 820, 821 (3d Cir.
1940).
The Board’s distinction here between Care One’s legally
inaccurate claim that striking employees risk loss of a job and
the permissible explanation that striking employees risk loss
of job status may seem picayune, but we do not gainsay the
Board’s judgment of the significance of that distinction to
employees exercising their protected right to form a union. In
prior cases, the Board has found that employer statements that
informed employees that striking could jeopardize their “job
status” were accurate, and thus lawful, but the Board
underscored that an employee’s “job status” is distinct from
her “job.” When the Board in Rivers Bend, 350 N.L.R.B.
184, 185 (2007), for example, held that the employer’s
statement that hiring striker replacements “puts each striker’s
continued job status in jeopardy” was not a threat of
termination in violation of Section 8(a)(1), the Board
specifically emphasized that the employer “did not say that
replaced strikers would permanently lose their jobs.” Id.; see
Novi American, Inc., 309 N.L.R.B. 544, 545-46 (1992).
The Board reasonably concluded that the Company’s
leaflet was not truthful and could reasonably be construed as
threatening in its blanket statement that striking could cost
employees their job. The Board accordingly was justified in
determining that the leaflet violated employees’ section
8(a)(1) rights.
c. Captive-Audience Meeting and Misleading Slideshow
Substantial evidence also supports the Board’s
conclusion that the Company’s slideshow violated the Act.
Care One’s facilities administrator, George Arezzo, aired the
slideshow at a mandatory, pre-election meeting for union-
eligible employees. The slideshow cast many of those
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employees as supportive of the company’s antiunion message,
even though the Company never verified the employees’
views or obtained their consent to be so depicted.
Because employees have the right to organize and
advocate organization, remain neutral, or support an
employer’s antiunion campaign, an employer may not
attribute an antiunion slogan to its employees without
obtaining the employees’ freely given permission to do so.
See Allegheny Ludlum, 333 N.L.R.B. 734, 744 (2001). In
general, “an employer who has not solicited employees to
participate in a campaign videotape” may “nevertheless use
their images in the videotape without incurring Section
8(a)(1) liability” only if the video, when “viewed as a whole,
does not convey the message that the employees depicted
therein either support or oppose union representation.” Id. at
743 (emphasis omitted). There is no “blanket requirement
that employers must obtain employees’ explicit consent
before including their images in campaign videotapes.” Id. at
744. But an employer may not without permission use an
employee’s image to impute to the employee an opinion about
unionization.
This is not a case of an employer displaying employees’
images without “indicat[ing] the position of the employees on
the subject of unionization.” Id. at 744. The slideshow
included images of happy, union-eligible employees making
heart signs and smiling together, accompanied by the song
“We Are Family.” See J.A. 189. Arezzo had repeatedly tied
the refrain of that song—“we are family”—to the antiunion
message he was promoting. Id. The Board concluded, based
on substantial evidence, that the context, purpose, and
message of the slideshow that Arezzo showed to Care One
employees at the mandatory March 21 meeting implied that
17
the depicted employees opposed unionization—a depiction
that interfered with those employees’ section 7 rights.
Care One argues that the Board erred by looking only to
whether the slideshow was “part of the employer’s
campaign,” without specifically determining that the
slideshow ascribed a pro-union view to employees. Br. of
Petitioner 52 (quoting December 16, 2014, Decision & Order,
J.A. 190). But the Board specifically rejected that argument.
It compared Care One’s slideshow to one in Sony Corp.,
which the Board held would cause a viewer to “reasonably
conclude that the laughing and smiling photographs of unit
employees whose faces appear during the film . . . were meant
to show support for the antiunion message of the film as a
whole.” J.A. 190 (citing Sony Corp. of Am., 313 N.L.R.B.
420, 429 (1993)).
The ALJ’s finding that “there was no explicit antiunion
message” in the slideshow itself, J.A. 190, does not detract
from the Board’s determination that, in the context of
Arezzo’s pitch, the implicit antiunion message was
unmistakable. The “we are family” slogan was pervasive in
the slideshow, and Arezzo reiterated it afterwards and used it
to underscore his antiunion message. See id. The Board
found that “there were unambiguous ‘vote no’ messages
communicated to employees both before and after” the
slideshow was shown, and found that the slideshow formed
part of “the Employer’s crusade to encourage employees to
vote against union representation.” Id. The findings that Care
One’s slideshow attributed an antiunion message to the
employees pictured are supported by substantial evidence.
d. Memo on Peaceful and Respectful Employee Interaction
Finally, we hold that the Board’s conclusion that the
memorandum Arezzo posted three days after the union
18
election violated section 8(a)(1) is supported by substantial
evidence. An employer “violates Section 8(a)(1) when it
maintains a work rule that reasonably tends to chill employees
in the exercise of their Section 7 rights.” Lutheran Heritage
Village-Livonia, 343 N.L.R.B. 646, 646 (2004). The parties
agree that Care One’s pre-existing Workplace Violence
Prevention Policy (the Policy), and the memorandum Arezzo
posted on March 26 attaching and referencing that policy, did
not explicitly prohibit any protected employee activity. The
question is whether Care One’s memorandum reiterating the
anti-violence policy was, in context, unlawful because “(1)
employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.” Id. at 647. The
Board found the memorandum unlawful for the first two
reasons.
The Board concluded that a reasonable employee could
read the memorandum to, in effect, expand the existing
Workplace Violence Prevention Policy so that it would newly
subject employees to discipline merely for failing to treat
other people in the workplace with “dignity and respect” with
regard to their stance on unionization. We find adequate
record support for the Board’s determination that the memo,
read in context, could reasonably be understood as instituting
a new policy of disciplining protected Section 7 activity.
We emphasize that an exhortation like Arezzo’s urging
employees to behave with “dignity and respect” would not be
unlawful on its own, but for the unlawful implication the
Board identified in Arezzo’s linking that caution to the
disciplinary policy and the referenced protected conduct. We
also underscore that the underlying Policy itself has not been
shown to be unlawful in any aspect. Cf. Adtranz ABB
19
Daimler-Benz Transp., NA v. NLRB, 253 F.3d 19, 25–28
(D.C. Cir. 2001). We have made clear that employers have
the prerogative of “demanding employees comply with
generally accepted notions of civility.” See id. at 27. Nothing
in our decision to sustain the Board’s order here should be
read to discourage employers from insisting that people treat
one another with dignity and respect in the workplace.
Nevertheless, the Board had sufficient basis on which to
conclude that a reasonable employee could understand the
memorandum as not merely an entreaty to respectful
behavior, but as a warning that Care One would discipline
protected activity such as occurred during the “NLRB
election.” J.A. 175. In the context in which it was issued,
Arezzo’s memorandum was reasonably susceptible of that
broader interpretation. The memorandum emphasized with
explicit reference to the just-concluded election that the
employees should “let go” of their differences and start
treating one another with “dignity and respect,” or risk being
in violation of the attached Policy. J.A. 175-76. That Policy
expresses Care One’s commitment to “maintaining a safe,
healthy and secure work environment, and preventing
violence in the workplace.” J.A. 176. It provides that “[a]cts
or threats of violence, including intimidation, harassment
and/or coercion” against anyone on the premises “will not be
tolerated,” and contemplates discipline “up to and including
termination of employment and/or legal action as
appropriate.” Id.
The critical fact, as found by the Board, is that “there is
no record evidence . . . that any threats actually occurred.”
J.A. 177. Given that nobody had engaged in the “violence,
including intimidation, harassment and/or coercion” that the
Policy targets, a reasonable employee might make sense of
the otherwise baffling recirculation of that Policy as aimed at
20
something else. Indeed, the memorandum was explicit about
its subject: the organizing campaign. Because the memo
followed directly on the heels of that concededly peaceful—if
vigorously debated and contested—campaign, a reasonable
employee could understand Care One to be saying that taking
a position in the workplace regarding union rights is
“disrespectful,” threatening, or harassing to co-workers in a
way that could warrant invoking the disciplinary policy. That
the memorandum on its face is not limited to pro-union
activity is beside the point. Care One’s violation was to
respond to peaceful workplace controversy over unionization
by reiterating its anti-harassment policy in a way that, in
context, could reasonably be understood as extending that
policy to protected activity.
We have made clear that it would be “simply
preposterous” to bar an employer from imposing “a broad
prophylactic rule against abusive and threatening language,”
Adtranz, 253 F.3d at 28, but the Board found that Care One
went further. In a context devoid of any of the conduct the
Policy legitimately addresses—threats of violence,
intimidation, harassment or coercion—the Board had
substantial evidence upon which to conclude that Arezzo’s
memorandum could reasonably be understood to presage
application of the disciplinary policy to the protected activity
to which Arezzo’s memorandum explicitly referred.
***
We therefore deny Care One’s petition for review and
grant the Board’s cross-application for enforcement with
respect to the unfair labor practices found by the Board.
So ordered.