giving these as examples of “serious [employee] misconduct” that courts have held to preclude those employees from being reinstated under the Board’s remedial orders
How later courts described this case
- giving these as examples of “serious [employee] misconduct” that courts have held to preclude those employees from being reinstated under the Board’s remedial orders
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1878
SUNRISE SENIOR LIVING, INCORPORATED,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 05-1933
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
SUNRISE SENIOR LIVING, INCORPORATED,
Respondent.
On Petition for Review and Cross-petition for Enforcement of an
Order of the National Labor Relations Board. (8-CA-34969; 8-CA-
35060)
Argued: March 16, 2006 Decided: May 31, 2006
Before LUTTIG,* WILLIAMS, and MICHAEL, Circuit Judges.
Petition for review denied; cross-petition for enforcement granted
by unpublished per curiam opinion.
ARGUED: Frederic Freilicher, HUNTON & WILLIAMS, L.L.P., McLean,
Virginia, for Petitioner/Cross-Respondent. Christopher Warren
Young, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent/Cross-Petitioner. ON BRIEF: Thomas P. Murphy, HUNTON &
WILLIAMS, L.L.P., McLean, Virginia, for Petitioner/Cross-
Respondent. Arthur F. Rosenfeld, Acting General Counsel, John E.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate General
Counsel, Meredith L. Jason, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
*
Judge Luttig heard oral argument in this case but resigned
from the court prior to the time the decision was filed. The
decision is filed by a quorum of the panel pursuant to 28 U.S.C.
§ 46(d).
2
PER CURIAM:
Lead care aides at a Sunrise Senior Living, Inc. assisted
living facility circulated a petition criticizing work conditions
and planned (but failed to execute) a day-long strike. In
response, managers persistently interviewed all of the aides to
identify who spearheaded these efforts, then fired one of the lead
aides and demoted another one. The National Labor Relations Board
determined that Sunrise committed unfair labor practices in
violation of section 8(a)(1) of the National Labor Relations Act
(the Act), 29 U.S.C. § 158(a)(1), by coercively interrogating the
aides and by improperly taking action against the lead aides for
engaging in activity protected under section 7 of the Act, 29
U.S.C. § 157. The Board’s remedial order required Sunrise, among
other things, to reinstate the fired aide with full back pay.
Sunrise petitions this court for review, seeking to overturn the
Board’s decision and order, and the Board cross-petitions for
enforcement. Concluding that substantial evidence supports the
Board’s decision and order and that its remedy was not arbitrary
and capricious, we deny Sunrise’s petition and grant the Board’s
cross-petition.
I.
Sunrise is a Delaware corporation with principal offices
in McLean, Virginia. The company operates nearly 370 senior living
3
facilities in the United States, including the 68-resident assisted
living facility in Parma, Ohio, where this case arose. The Parma
facility’s residents depend in varying degrees on the care aides
for help with the basic routines of life (for example, dressing,
bathing, and use of the toilet). The aides, including the
designated lead care aides, are not professional nurses. They are
not represented by a union.
A.
Susan Johnson became executive director of the Parma
facility on March 1, 2004. At a meeting that week she informed the
care aides that a former resident who was scheduled to return to
the facility would need assistance with handling her colostomy bag.
Rosie Howard, a supervisor of the care aides, expressed concern
that the aides would object to being assigned to the colostomy bag
emptying routine. On March 9 three lead care aides -- Samantha
Reyes, Coty Smith, and another employee -- met with Johnson to
present her with a petition. Signed by 24 aides, the petition
declared, “[W]e have talked among each other and have all agreed
that we are unwilling to accept responsibility for any colostomy
care. We do more than our share of work here.” J.A. 936. The
petition asserted that the care aides faced a long list of regular
responsibilities and that the aides “are subjected to verbal abuse
by angered family members, and were disrespected by the management
4
team.” Id. The petition concluded: “We as a group have all
reached our limit in additional job assignments and hope this
situation is addressed without further action needed.” J.A. 936-
37. After receiving the petition, Johnson asked the lead aides to
identify the author of the document, but received no response. She
later discussed the petition with higher Sunrise executives. They
decided that Johnson would meet with the care aides in small groups
to further investigate the petition.
That same day (March 9), in Howard’s office and within
her earshot, Reyes suggested that the care aides plan a work
stoppage on March 11. Smith discussed the work stoppage with care
aide Cynthia Boldan, who said she would not participate. Also that
day, Johnson asked Howard what she knew about the petition and its
authorship; Johnson raised her voice in disbelief when Howard
professed no knowledge. On March 10 Reyes told care aides Tania
Kaufman, Lisa Dousa, and Olexandra Chepak that there would be a
work stoppage the next day and that if they did not participate,
they would be on duty by themselves. They said they would not take
part. (Later, at the unfair labor practice hearing before the
administrative law judge, Reyes repeatedly denied under oath that
she discussed a work stoppage, but after Sunrise presented numerous
contradicting witnesses, the ALJ found that Reyes’s denials were
not credible.)
5
Also on March 10 Johnson, accompanied by Sunrise
executives Linda Olsavsky and Natalie Antosh, conducted interviews
with the care aides in groups of three to five aimed at determining
the petition’s authors. One of the aides, Lisa Dousa, named Reyes
and Smith as the authors. After the interviews Johnson learned of
the work stoppage being discussed for the next day, so she called
her supervisors and arranged for employees from other Cleveland-
area Sunrise facilities to cover for the absent workers. Every
care aide showed up for work on March 11. There was no strike.
That morning, after Johnson called Smith to tell her to come in
early, Smith called Dousa and asked her why Dousa had identified
the petition authors. Dousa later told management about Smith’s
call.
On March 11 Johnson (joined at times by Antosh and
Olsavsky) interviewed many of the care aides individually in her
office, asking about the petition and the work stoppage. Several
of the aides told Johnson that Reyes had discussed the strike with
them. In her interview with Boldan, Johnson expressed disapproval
of the petition, saying that the aides could have brought their
grievances to her informally rather than committing them to
writing. During the interviews at least two of the aides felt
afraid of losing their jobs, while another came to regret signing
the petition.
6
Johnson later placed Reyes, Smith, and Howard on paid
administrative leave pending an investigation. On March 16 Sunrise
demoted Smith to care aide, although it continued to pay her as a
lead care aide. Sunrise fired Reyes. (On March 19 the company
also fired Howard, but the ALJ determined that Howard’s discharge
was not an unfair labor practice, and her claim is not presented in
this appeal.)
B.
Howard and the United Food & Commercial Workers Union
Local 880 filed charges with the Board over Sunrise’s conduct. The
Board’s General Counsel issued an administrative complaint alleging
that Sunrise engaged in unfair labor practices violating the Act.
See 29 U.S.C. § 158(a). The ALJ heard testimony during the unfair
labor practice hearing in September and October 2004. The ALJ
ruled for the General Counsel in March 2005, and Sunrise filed
exceptions to the ALJ’s decision and order.
In July 2005 the Board affirmed the ALJ’s findings that
Sunrise engaged in three unfair labor practices under section
8(a)(1) of the Act (1) when it fired Reyes and (2) demoted Smith
(both of whom the Board concluded were engaged in protected
activity under the Act in organizing the petition and the
threatened strike), and (3) when Sunrise coercively interrogated
the care aides in the interviews on March 10 and 11, 2004. To
7
remedy these unfair labor practices, the Board entered a cease-and-
desist order. It declined to require Sunrise to restore Smith to
her earlier position because she voluntarily resigned two months
after her demotion. The Board concluded that the proper remedy for
Sunrise’s violation as to Reyes was to reinstate her and award her
full back pay, even though the ALJ discredited Reyes’s testimony
that she never advocated a strike. 344 N.L.R.B. No. 151 (July 29,
2005), slip op. at 1.
Sunrise, which “transacts business” within this circuit
pursuant to the Act’s venue rule, 29 U.S.C. § 160(f), petitions for
review of the Board’s decision and order. Sunrise contends that
the Board erred in concluding that Sunrise committed an unfair
labor practice (1) by firing Reyes and ordering her reinstated with
full back pay, even though the ALJ discredited her in part; (2) by
demoting Smith, despite Sunrise’s articulation of valid reasons
unrelated to protected activity; and (3) by interviewing the aides
in groups and individually, which Sunrise contends did not amount
to coercive interrogation. The Board’s cross-petition seeks
enforcement of its decision and order.
Section 7 of the Act provides that employees “have the
right to self-organization . . . and to engage in other concerted
activities for the purpose of . . . mutual aid or protection.” 29
U.S.C. § 157. These rights are secured by section 8(a)(1), which
makes it an unfair labor practice for an employer “to interfere
8
with, restrain, or coerce employees in the exercise of the rights
guaranteed in” section 7. 29 U.S.C. § 158(a)(1). “The scope of
our inquiry in reviewing the Board is limited.” Medeco Sec. Locks,
Inc., v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998). We uphold the
Board’s factual findings if, considering the whole record, they are
supported by substantial evidence. 29 U.S.C. § 160(e); TNT
Logistics of N. Am., Inc. v. NLRB, 413 F.3d 402, 405 (4th Cir.
2005). In reviewing questions of law, we defer to the Board’s
interpretation of the Act “so long as its reading is a reasonable
one.” RGC (USA) Mineral Sands Inc., v. NLRB, 281 F.3d 442, 448
(4th Cir. 2002) (quoting Holly Farms Corp. v. NLRB, 517 U.S. 392,
409 (1996)).
II.
Sunrise first claims (a) that the Board erroneously
determined that Sunrise’s conduct toward Reyes was an unfair labor
practice, and (b) that even if this conduct was an unfair labor
practice, the Board’s remedy was improper in that it failed to
sanction Reyes in any way for her discredited testimony.
A.
An employer violates section 8(a)(1) when “(1) [its]
. . . action can be reasonably viewed as tending to interfere with,
coerce, or deter (2) the exercise of protected activity, and (3)
9
the employer fails to justify the action with a substantial and
legitimate business reason that outweighs the employee’s [section]
7 rights.” Medeco Sec. Locks, 142 F.3d at 745. Sunrise advances
two arguments in contending that it did not violate section 8(a)(1)
in firing Reyes: (1) she improperly pressured the aides in
organizing the work stoppage and thereby lost the section 7 shield,
and (2) Sunrise had a valid business justification for its action
because if it had not responded decisively to the threatened
strike, it would have risked violating a state statute safeguarding
the health of the facility’s residents.
1.
Reyes and Smith drafted a petition concerning their
conditions of employment and advocated (but did not bring about) a
day-long strike at the Parma facility. These activities are
ordinarily concerted activities under section 7 because they
constitute exercises of statutory rights such as “self-
organization” and “mutual protection.” In contrast, an employee’s
circulation of a petition to remove a supervisor for personal
reasons is not concerted activity protected by the statute. Joanna
Cotton Mills Co. v. NLRB, 176 F.2d 749, 753 (4th Cir. 1949).
Sunrise contends that Reyes’s motivation was to prevent her mother
(one of the facility’s aides) from having to take responsibility
for the returning resident’s colostomy care. The bare existence of
such a motive, however, does not affect the analysis because the
10
petition and the threatened stoppage were predominantly directed at
challenging collective work conditions. What matters is the
activity’s purpose, not a participating employee’s motive. TNT
Logistics, 413 F.3d at 407 (quoting id.); see also FiveCAP, Inc. v.
NLRB, 294 F.3d 768, 783 (6th Cir. 2002) (circulation of a petition
“seek[ing] the amelioration of work-related conditions” is
protected activity).
How the activity is carried out also matters. In NLRB v.
Washington Aluminum Co., 370 U.S. 9 (1962), the Supreme Court
identified “normal categories of unprotected concerted activities
such as those that are unlawful, violent, or in breach of
contract.” Id. at 17. The Court also characterized as unprotected
those concerted activities that are “indefensible because they
. . . show a disloyalty to the workers’ employer” to a degree
beyond that needed to pursue valid section 7 objectives. Id. We
have understood this language to mean that section 7 does not
shield employees whose “conduct is so egregious as to take it
outside the protection of the Act, or of such a character as to
render [employees] . . . unfit for further service.” Anheuser-
Busch, Inc. v. NLRB, 338 F.3d 267, 280 (4th Cir. 2003) (punctuation
omitted). Such “egregious” conduct would include, for example,
“threatening to kill a supervisor” or “stealing from an employer.”
Cf. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 146
(2002) (giving these as examples of “serious [employee] misconduct”
11
that courts have held to preclude those employees from being
reinstated under the Board’s remedial orders).
Sunrise argues that when Reyes told the care aides about
the planned March 11 work stoppage, she abused her authority and
impermissibly pressured them to participate, thereby surrendering
section 7 protection under Washington Aluminum. Substantial
evidence, however, supports the Board’s contrary determination.
Chepak recalled that Reyes said to her on March 10, 2004, “[Y]ou
can’t come in tomorrow morning” and that Chepak should telephone
other aides to tell them not to come in either. J.A. 509H. Yet
neither Chepak’s account nor anyone else’s shows that Reyes
threatened to punish any aide who did not participate in the work
stoppage. Kaufman, another aide, described Reyes as “like,
basically, kind of pressuring us into calling . . . off along with
others,” J.A. 480, but Kaufman hedged her characterization with
qualifiers (“like . . . kind of”). Her description of Reyes’s
“pressuring” was not tantamount to evidence that Reyes engaged in
an act that was so egregious as to remove the section 7 shield.
We therefore affirm the Board’s conclusion that section
7 protected the actions of Reyes and Smith.
2.
When an employer disciplines an employee by changing
employment conditions and terms in response to the employee’s
protected activities, the employer “necessarily coerces the
12
employee from engaging in protected activities.” NLRB v. Air
Contact Transport Inc., 403 F.3d 206, 213 (4th Cir. 2005). Such
coercion violates section 8(a)(1) if the employer does not
demonstrate it had a “substantial and legitimate business reason”
for its conduct that outweighs the employee’s rights. Medeco Sec.
Locks, 142 F.3d at 745.
Sunrise’s challenge draws on language from the Supreme
Court’s opinion in Hoffman Plastic, where the Court refused to
allow the Board to award back pay to illegal alien employees to
remedy the employer’s unfair labor practices because federal
immigration law expressly prohibited employing aliens not lawfully
in (or authorized to work in) the United States. Hoffman Plastic,
535 U.S. at 147-49. The Court concluded that the Board’s “remedy
may be required to yield” when that remedy “trenches upon a federal
statute or policy outside the Board’s competence to administer.”
Id. at 147. From this starting point Sunrise argues that the Board
erred in failing to acquiesce to Sunrise’s need to comply with
state health care law. In essence, Sunrise characterizes the state
legal requirements as a “substantial and legitimate business
reason” for its conduct toward Reyes and the other aides. The
Board’s failure to validate the state law requirements, in
Sunrise’s view, “trenches upon” the state regulatory scheme, as
Hoffman Plastic used that phrase.
13
In particular, Sunrise points to its obligations to the
Parma facility’s residents under Ohio’s “residents’ rights”
statute, section 3721.13 of the Ohio Revised Code. That statute
secures a nursing home resident’s rights, among others, “to a safe
and clean living environment,” Ohio Rev. Code Ann. § 3721.13(A)(1),
and “to have all reasonable requests and inquiries responded to
promptly,” id. § 3721.13(A)(4). Supporting this argument was
Sunrise’s expert witness, Kurt Haas, who testified that state
regulators hold facilities such as the one at Parma to the
statutory standard for nursing homes. Haas further testified that
regulators would expect a facility whose workers threatened a
strike to take “corrective action, preventative measures that were
commensurate with the infraction” against the strike, to prevent
“abuse and neglect” of the facility’s residents. J.A. 532. Haas
also surmised that a facility that tolerated an employee strike
would be “in harm[’]s way” regarding its state certification,
without which it could not continue to operate. J.A. 550. On
cross-examination, however, Haas could not point to any state law
or regulation that would compel a facility to fire employees who
planned a one-day work stoppage. He also knew of no case in which
a facility actually lost its state license because workers “talked
about” such a strike.
We do not dispute Sunrise’s claim that as an operator of
a state-licensed assisted living facility the company has
14
significant duties to its residents under Ohio’s health care
statute. Sunrise simply failed, however, to prove that its duties
under the Ohio statute directly collided with its section 8(a)(1)
obligation to refrain from unfair labor practices. The Act
protected Reyes in preparing the petition and planning the work
stoppage, and as Haas’s answers on cross-examination revealed, no
Ohio law compelled Sunrise to fire Reyes for these actions. Haas’s
mere speculation that the Parma facility could have lost its state
license if it did not fire Reyes and take other measures to respond
to the threatened strike is inadequate to support Sunrise’s claim.
The Board’s determination to this effect was correct.
Hoffman Plastic moreover does not extend as far as
Sunrise would take it. The Supreme Court held in that case that
the Board’s remedial order could not be permitted to undermine the
express terms of a federal immigration statute. Here, there is
simply no federal statute upon which the Board’s decision
“trenched,” and nothing in Hoffman Plastic subordinated the Board’s
determinations under the Act to the sort of vague generalizations
about the principles of state law that Sunrise presents.
Sunrise’s arguments thus fall short of establishing that
the Board erred. Striking “the proper balance between the asserted
business justifications and the invasion of employee rights in
light of the Act and its policy” is a task that is “the primary
responsibility of the Board and not the courts.” Medeco Sec.
15
Locks, 142 F.3d at 745 (punctuation omitted). Accordingly, we
cannot set aside the Board’s conclusion that Sunrise lacked a
“substantial and legitimate business reason” for firing Reyes that
trumped her rights under the Act and that her discharge contravened
section 8(a)(1).
B.
The ALJ stated that he “found Reyes a less than fully
credible witness based on her demeanor and testimony,” which was
“contradicted by multiple witnesses, including Smith who, like
Reyes, testified on behalf of the General Counsel.” J.A. 937 n.6.
If Reyes had testified honestly about the discussions, the
proceeding would have been somewhat shorter because Sunrise would
not have called as many care aides to rebut Reyes’s testimony. The
Board recognized that the ALJ “discredited portions of [Reyes’s]
testimony,” but stated that “there is no evidence that [Reyes]
engaged in deliberate and malicious misconduct that abused and
undermined the integrity of the Board’s processes.” J.A. 933. The
Board ordered Reyes reinstated with full back pay. Reyes
benefitted from this remedy even though -- having taken an oath to
testify truthfully before the ALJ -- she violated that oath when
she denied discussing a strike with care aides.
Sunrise acknowledges that under ABF Freight System, Inc.
v. NLRB, 510 U.S. 317 (1994), the Board has “broad discretion” in
16
selecting remedies, even those that benefit employees whose
inexcusable false testimony risks compromising the integrity of
administrative proceedings. Id. at 325. Sunrise nevertheless
attacks the Board’s remedy here based on a recent case, Toll
Manufacturing Co., 341 N.L.R.B. No. 115 (May 4, 2004). There, the
Board cut off an employee’s backpay as of the date he first lied
under oath before an ALJ. The Board ruled that the employee had
“abused the Board’s processes for his own benefit, that his
transgressions were repeated, and that his testimony was generally
untrustworthy.” Id., slip. op. at 5. Sunrise contends, however,
that Toll Manufacturing and the Board’s remedial order are so
inconsistent that the Board has exceeded its “broad [remedial]
discretion.”
Sunrise expresses legitimate concern about Reyes’s
discredited testimony. Untruthful testimony in any form, whether
at an unfair labor practice hearing or a trial in any court, is of
grave concern. We neither “reward nor condone . . . a flagrant
affront to the truth-seeking function of adversary proceedings.”
ABF Freight, 510 U.S. at 323 (punctuation omitted). Yet when the
Board has concluded that the objectives of the National Labor
Relations Act are best served by awarding relief to an employee who
did not testify truthfully in all respects, the Supreme Court has
cautioned generalist judges not to casually second guess that
expert determination. “[C]ourts must give the agency’s decision
17
controlling weight unless it is ‘arbitrary, capricious, or
manifestly contrary to the statute.’” Id. at 324 (quoting Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844
(1984)). The source of this rule is Congress’s express delegation
to the Board, not the courts, of the power to ascertain remedies
for unfair labor practices. 29 U.S.C. § 160(c); ABF, 510 U.S. at
324. Put another way, to set aside the Board’s remedial order we
would have to conclude that “the order is a patent attempt to
achieve ends other than those which can fairly be said to
effectuate the policies of the Act.” Virginia Elec. & Power Co. v.
NLRB, 319 U.S. 533, 540 (1943); ABF, 510 U.S. at 324 n.10 (quoting
id.).
Sunrise fails to show that the Board’s remedy was
arbitrary and capricious. The Board’s remedial order was not an
unexplained deviation from the Board’s determination in Toll
Manufacturing. Rather, the Board reasonably distinguished that
case. Toll Manufacturing involved an employee who after his
discharge claimed he should not have been fired for failing to
notify his employer on two days that he would not be at work. The
employee testified at an initial unfair labor practice hearing that
he gave proper notice by calling his employer from home on those
days, and the ALJ specifically credited that testimony. In fact,
the employee went to work for another employer on those days, but
he repeated his lies in an affidavit, in a subsequent deposition,
18
and finally at a second hearing that the Board ordered to examine
the discrepancies in the record created by the employee’s previous
lies. Toll Mfg. Co., slip. op. at 1, 5. Here, by contrast, the
ALJ determined at the hearing that Reyes’s testimony about
discussing the work stoppage was not credible; the discredited
testimony (unlike the credited testimony in Toll Manufacturing) did
not go on to contaminate the ALJ’s decision or subsequent Board
proceedings. Thus the Board’s conclusion that Reyes’s discredited
testimony did not amount to a malicious abuse of the Board’s
processes was not arbitrary and capricious.
Reyes’s discredited testimony is troubling and must be
condemned. ABF counsels us, however, to conclude that the Board’s
chosen remedy fell within its “broad discretion.” The remedy must
therefore be enforced.
III.
Sunrise next claims that its demotion of Smith was not an
unfair labor practice. The company contends that it would have
disciplined Smith even if she had not engaged in activity protected
under section 7 and that the Board’s contrary determination was
erroneous. The Board applied the burden-shifting framework of
Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st
Cir. 1981), to determine whether Sunrise’s action constituted
discrimination against Smith based on her protected activity.
19
Under this familiar framework, the General Counsel must
first present a prima facie case that the employer’s disciplinary
decision was motivated by the protected activity. “To make out a
prima facie case, the General Counsel must show (1) that the
employee was engaged in protected activity, (2) that the employer
was aware of the activity, and (3) that the activity was a
substantial or motivating reason for the employer’s action.” FPC
Holdings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995). If the
General Counsel makes such a showing, “the employer may still
escape liability by presenting the affirmative defense that the
discriminatory motivation, though illicit, was harmless.” Medeco
Sec. Locks, 142 F.3d at 742. To demonstrate harmlessness, the
employer must establish that it would have taken the same action
against the employee for legitimate reasons. Id. “If the Board
believes the employer’s stated lawful reasons are non-existent or
pretextual, the employer’s defense fails.” Air Contact, 403 F.3d
at 215 (punctuation omitted). The Board’s determination regarding
an employer’s motive is a factual one, NLRB v. Hale Container Line,
Inc., 943 F.2d 394, 398 (4th Cir. 1991), so we must uphold such a
determination if it is supported by substantial evidence, 29 U.S.C.
§ 160(e), which is tantamount to asking “whether on this record it
would have been possible for a reasonable jury to reach the Board’s
conclusion.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.
359, 366-67 (1998).
20
Sunrise concedes that the General Counsel proved by a
preponderance that a discriminatory motive was a substantial or
motivating factor for Smith’s demotion and thus established a prima
facie case. Sunrise proceeds to challenge the Board’s rejection of
its defense. The company asserts two lawful reasons for demoting
Smith. First, it alleges that Smith improperly harassed Dousa
when, after learning from other aides that Dousa had revealed to
management that Smith and Reyes had drafted the petition, Smith
called her to complain. Second, the company alleges that Smith had
a prior history of breaking work rules that warranted discipline.
Several times she left the facility while “on the clock,” and she
was once accused of not helping all the residents shower. J.A.
781-83, 839-43. The ALJ concluded that the company’s asserted
reasons were pretextual, and the Board adopted all of the ALJ’s
findings with one narrow exception: the Board did not endorse the
ALJ’s conclusion that Smith’s telephone call to Dousa could be
considered as part and parcel of Smith’s protected activity.
The Board’s conclusion was the same that a reasonable
jury could have reached from the evidence presented. First,
although Dousa testified that Smith used harsh language in the
telephone call and that Dousa was intimidated as a result, there
was no evidence that Dousa suffered anything more than hurt
feelings. For example, Smith never used profanities or made any
threats during the telephone call. Also, if the harassment had
21
been a valid reason for the company’s action, Sunrise would have
reasonably been expected to follow its own standard procedures
before disciplining Smith. Instead the company disciplined Smith
without obtaining her “version of events,” Rep. Br. at 10, which
was inconsistent with Sunrise’s established internal investigations
policy. According to that policy, the final step in an
investigation is to record the target’s account of the events at
issue.
Second, Sunrise, which bore the burden of proof on its
defense, did not present substantial evidence that it demoted Smith
for her prior violations of Sunrise rules. The company never told
her that previous misconduct drove the demotion. In addition,
more than a year elapsed between the last prior transgression and
Smith’s demotion, reducing the likelihood that the previous
misconduct had any causal relationship to the action.
Thus, we affirm the Board’s conclusion that Sunrise’s
demotion of Smith was an unfair labor practice contravening section
8(a)(1).
IV.
Sunrise’s final claim is that its group and individual
interviews of the aides did not amount to an unfair labor practice
because the company did not coercively interrogate the employees.
Ordinary questioning of employees about protected concerted
22
activity is not an unfair labor practice, but coercive questioning
is, and like the Board we consider the totality of the
circumstances to tell the difference. NLRB v. Nueva Eng’g, Inc.,
761 F.2d 961, 965-66, 966 n.5 (4th Cir. 1985). The relevant
circumstances may include “the nature of information sought, the
identity of the questioner, and the place and method of the
questioning.” Id. at 966. The Board assesses the circumstances in
the first instance, and we affirm the Board’s finding on
coerciveness if it is supported by substantial evidence. When the
finding rests on credibility determinations, we accept those
determinations where there is no showing of “exceptional
circumstances” (namely that the determinations contradict other
findings, or are unreasonable, or are supported by little to no
reasoning). NLRB v. CWI of Maryland, Inc., 127 F.3d 319, 326 (4th
Cir. 1997).
Sunrise strives to distinguish the March 10 group
interviews from the March 11 individual interviews. The company
contends that the ALJ should have credited the testimony of
managers Johnson and Olsavsky that they began the group interviews
with introductory remarks assuring the aides there would be no
reprisals against them for participating in the petition. The
ALJ’s decision contains no specific credibility determination
regarding Olsavsky, and Sunrise emphasizes that Amber Hines, the
one care aide who testified to the specifics of the group meeting
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she attended, could not remember how the meeting began. The
company acknowledges Hines’s testimony that the interviewers at no
time promised there would be “no retaliation . . . taken against
anyone for sitting in the room” and answering questions. J.A. 330.
Nevertheless, Sunrise maintains that the ALJ erred in concluding
that Johnson and the others never assured the aides against
reprisal. Specifically, Sunrise argues that Hines was biased by
other conflicts with Sunrise personnel, her recollection was not
complete, and Olsavsky provided evidence to the contrary.
Sunrise’s claim faces several insurmountable obstacles.
First, Hines’s partial recollection was enough to permit the ALJ to
infer that the interviewers did not assure the aides that there
would be no reprisal. Sunrise has not shown any of the
“exceptional circumstances” that would warrant our overturning the
ALJ’s decision to credit Hines instead of Johnson, and while a
ruling on Olsavsky’s credibility might have made the ALJ’s
reasoning complete, the absence of such a ruling is not grounds for
reversal. Second, Sunrise places more weight on assurances against
reprisal than they can bear. Such assurances, even if given, do
not by themselves remove the sting of unfairness from otherwise
coercive interrogation. Standard-Coosa-Thatcher Carpet Yarn Div.,
Inc. v. NLRB, 691 F.2d 1133, 1141 n.8 (4th Cir. 1982) (quoting
Johnnie’s Poultry Co., 146 N.L.R.B. 770, 775 (1964)). Third, even
if Johnson and her colleagues believed they were not coercing the
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aides during the group interviews, the Board would not be precluded
from finding that the interviews contravened section 8(a)(1).
“[N]o proof of coercive intent or effect is necessary[,] the test
being whether the employer engaged in conduct, which, it may
reasonably be said, tends to interfere with the free exercise of
employee rights under the Act.” Brandeis Mach. & Supply Co. v.
NLRB, 412 F.3d 822, 830 (7th Cir. 2005) (punctuation omitted).
Also, we note that the General Counsel’s complaint focused on the
March 11 individual interviews, and nothing in the Board’s remedial
order differentiated between the group interviews and the
individual ones.
From the totality of the circumstances surrounding
Sunrise’s interviews of the aides on March 10 and 11, we conclude
that substantial evidence supports the Board’s finding of an unfair
labor practice. In the interviews Johnson and the other executives
sought information concerning the petition and the planned work
stoppage, two protected activities under the Act. Johnson made her
disapproval of the activities clear in the interviews. The
identity of the questioners also weighed in favor of the coercion
finding. Johnson was the Parma facility’s new executive director,
Olsavsky was Sunrise’s regional registered nurse, and Antosh was
the executive director of the company’s facility in Rocky River,
Ohio. All three had oversight responsibility, while the interview
subjects were all low-level care aides. Finally, the method of
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questioning was insistent. Johnson asked about the identity of the
petition’s authors not just once, but several times. The
questioning also exacerbated rather than alleviated the aides’ fear
of being fired for signing the petition.
There was, in sum, substantial evidence before the ALJ
and the Board that both the group and individual interviews were
coercive. We therefore leave undisturbed the Board’s conclusion
that Sunrise violated section 8(a)(1) by coercively interrogating
its employees.
V.
The Board’s determinations that Sunrise committed unfair
labor practices by coercively interrogating the aides, firing
Reyes, and demoting Smith are supported by substantial evidence.
In addition, the Board’s choice of remedy was not arbitrary and
capricious. Accordingly, we deny Sunrise’s petition for review and
grant the Board’s cross-petition for enforcement of its decision
and order.
PETITION FOR REVIEW DENIED;
CROSS-PETITION FOR ENFORCEMENT GRANTED
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