The opinion
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2002 Decided July 25, 2003
No. 01-1432
COMMUNITY HOSPITALS OF CENTRAL CALIFORNIA,
D/B/A UNIVERSITY MEDICAL CENTER,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
CALIFORNIA NURSES ASSOCIATION,
INTERVENOR
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
G. Roger King argued the cause for petitioner. With him
on the brief was Daniel H. Bromberg.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
James M. Oleske, Jr., Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and David Habenstreit,
Supervisory Attorney. Anne M. Lofaso, Attorney, entered
an appearance.
Before: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: A union representing nurses
charged the new owner of a hospital with an unfair labor
practice when it refused to recognize and to bargain with the
union. The National Labor Relations Board held the new
owner was a successor employer, the nurses at the hospital
constituted an appropriate bargaining unit, and the employer,
in declining to deal with the union, did not rely upon a good-
faith reasonable doubt about the union’s majority status. The
Board also held certain provisions of the employer’s handbook
for employees likely to chill protected activity and therefore
unlawful. We uphold the decision of the Board and grant its
application for enforcement with respect to all matters except
the employee handbook, as to which we grant the employer’s
petition for review.
I. Background
For some years Community Hospitals of Central California
(Community), a private non-profit company, operated two
hospitals in the Fresno, California area, while the County of
Fresno operated Valley Medical Center (VMC) and other
medical facilities in the County. Nurses working at VMC
were the majority of bargaining Unit 7, which included nurses
at other facilities operated by the County. Unit 7 was
represented by the California Nurses Association (CNA or
the Union) for more than 20 years.
In October 1996 Community acquired VMC and renamed it
University Medical Center (UMC). In connection with the
3
acquisition, Community instituted various changes at UMC.
In brief, Community consolidated many administrative and
support services with those of its other hospital facilities, and
by its own account ‘‘replaced VMC’s traditional, hierarchical
facility-based management model with a flattened, service-
based system-wide ‘shared governance’ management struc-
ture.’’ Community also allowed nurses to transfer between
UMC and its other facilities.
In August 1996, when it was becoming apparent that
Community might acquire VMC, the Union demanded that
Community recognize and bargain with it. Community ac-
knowledged receipt of the demand, but refused to recognize
or to bargain with the Union. The Union filed an unfair labor
practice charge and the General Counsel issued a complaint
alleging that Community had violated § 8(a)(5) of the Nation-
al Labor Relations Act, 29 U.S.C. § 158(a)(5). The Regional
Director on his own initiative added an allegation that the
maintenance of certain provisions in Community’s employee
handbook was an unfair labor practice in violation of § 8(a)(1)
of the Act.
An Administrative Law Judge held (1) Community was a
successor employer to the County, contrary to Community’s
argument that there was not ‘‘substantial continuity’’ between
VMC and UMC; (2) the Unit 7 nurses at UMC constituted an
appropriate bargaining unit, notwithstanding Community’s
argument that the Unit 7 nurses at UMC shared a communi-
ty of interest with the nurses at its other hospitals; and (3) in
failing to recognize the Union, Community did not have or
rely upon a good-faith reasonable doubt regarding the Un-
ion’s majority status. Cmty. Hosps. of Cent. Cal., 335
N.L.R.B. No. 87, at 15–24 (2001) (Order). The ALJ also held
that (4) Community’s handbook violated the Act, as alleged.
Id. at 24–25. The Board affirmed and substantially adopted
the findings and decision of the ALJ,* id. at 1–6, over
* The Board held Community was required by the ‘‘successor bar
rule’’ of St. Elizabeth Manor, Inc., 329 N.L.R.B. 341, 344 (1999), to
bargain with the Union for a reasonable period of time, regardless
of any doubt or actual evidence it may have had regarding the
4
Chairman Hurtgen’s dissent with regard to the employee
handbook issue. Id. at 6–9.
II. Analysis
‘‘A [1] successor employer is required to recognize and
negotiate with the bargaining agent of the predecessor’s
employees if [2] the bargaining unit remains appropriate and
[3] the successor does not have a good faith doubt of the
union’s continuing majority support.’’ Trident Seafoods, Inc.
v. NLRB, 101 F.3d 111, 114 (D.C. Cir. 1996). Community
challenges the Board’s application of each element in this
formula, arguing (1) it was not a successor employer; (2) Unit
7 was not an appropriate bargaining unit after the acquisition;
and (3) Community did have and did rely upon a good-faith
reasonable doubt in refusing to recognize or to bargain with
the Union. Community also claims the Board lacked jurisdic-
tion to rule upon the propriety of its employee handbook, and
that in any event the relevant provisions were not unlawful.
We must affirm the Board’s order unless ‘‘the Board’s
[factual] findings are not supported by substantial evidence,
or TTT the Board acted arbitrarily or otherwise erred in
applying established law to the facts of the case.’’ Trades-
men Int’l, Inc. v. NLRB, 275 F.3d 1137, 1141 (D.C. Cir. 2002).
Questions of law we review with deference to the Board’s
expertise. NLRB v. City Disposal Sys., Inc., 465 U.S. 822,
829 (1984).
A. Successorship
A new employer is a successor to a former employer ‘‘if
there is substantial continuity between the enterprises’’ of the
two, Pa. Transformer Tech., Inc. v. NLRB, 254 F.3d 217, 222
(D.C. Cir. 2001) (internal quotation marks omitted). The
Union’s majority status. Order at 2. The Board has since over-
ruled St. Elizabeth Manor. See MV Transp., 337 N.L.R.B. No. 129
(2002). The General Counsel therefore does not pursue the point,
relying instead upon the Board’s alternate holding that Community
did not have or rely upon a good-faith reasonable doubt about the
Union’s majority status. Order at 2.
5
Board’s standard for determining substantial continuity is set
forth in Fall River Dyeing & Finishing Corp. v. NLRB, 482
U.S. 27, 43 (1987). There the Court stated with approval the
factors the Board uses:
whether the business of both employers is essentially the
same; whether the employees of the new company are
doing the same jobs in the same working conditions
under the same supervisors; and whether the new entity
has the same production process, produces the same
products, and basically has the same body of customers.
The Board assesses these factors, no single one of which is
dispositive, from the perspective of the employees involved.
Id. In this case the Board found Community ‘‘operates an
acute care health facility, in the same location, using essen-
tially the same equipment [as had the County]. The general
pool of patients remains the same and they are treated in the
same [treatment units].’’ Order at 15. Furthermore, there
was no hiatus between the closing of VMC and the opening of
UMC, id., and the two organizations employed many of the
same supervisors. Id. at 16.
In arguing it was not a successor employer, Community
does not deny the factual predicate upon which the Board
based its decision. Instead it identifies a number of facts it
claims cut against the Board’s finding of substantial continui-
ty: the change from public to private management; the new
supervisory and management structure; changes in the
duties, compensation, and benefits of the nurses at the hospi-
tal; changes in the nurses’ shift schedules and in the organi-
zation of support functions; and the adoption of a ‘‘partner
model’’ of patient care.
The Board’s decision is nonetheless supported by substan-
tial evidence. See Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951) (‘‘The substantiality of evidence must
take into account whatever in the record fairly detracts from
its weight’’). The Board reasonably found that the nurses at
UMC continued to do the same jobs, in the same location,
using the same equipment, and treating the same patients as
they had before the acquisition, and that the nature of the
6
employer’s business – an acute health care facility – remained
the same. Moreover, the Board’s decision is in accord with
precedent. See Asseo v. Centro Medico del Turabo, Inc., 900
F.2d 445, 451 (1st Cir. 1990) (successor where hospital is
‘‘engaged in the same business of providing health care
services to substantially the same community’’ as had prede-
cessor and employees ‘‘perform substantially the same func-
tions’’); NLRB v. New Medico Health Care Ctr. of Mich.,
Inc., No. 91–5271, 1991 U.S. App. LEXIS 30424, at *8–9 (6th
Cir. Dec. 20, 1991) (unpublished, per curiam) (substantial
evidence of continuity where nursing care center continued
‘‘uninterrupted and in the same facility,’’ ‘‘[e]mployees [sic]
responsibilities remained the same,’’ and new employer ‘‘con-
tinued to care for the same patients without a substantial
change in operation’’); NRNH, Inc., 332 N.L.R.B. 300, 2000
NLRB LEXIS 652, at *37 (2000) (substantial continuity found
where ‘‘entities engaged in the same business, long-term
nursing care,’’ providing for the same patients in same build-
ing under ‘‘almost all of the same supervisors’’); Hosp. San
Francisco, Inc., 293 N.L.R.B. 171, 172, 1989 NLRB LEXIS
129, at *8 (1989) (similar).
The change from public to private ownership of the hospital
does not undermine the Board’s finding that Community was
a successor. For the contrary proposition, Community in-
vokes Lincoln Park Zoological Society v. NLRB, 116 F.3d
216, 220 (7th Cir. 1997), in which the court observed that
‘‘there is a readily apparent contrast between a large public
employer TTT and a relatively small private entity.’’ The
contrast was apparent on the facts of that case because ‘‘the
represented workforce was diminished by 97 percent’’ and,
the court speculated, ‘‘hiring and firing practices, as well as
pay and benefit packages, may be different under a closely
managed private entity.’’ Initially we note that because the
successorship issue was undisputed in Lincoln Park Zoologi-
cal Society, these statements are dicta. Even if they were
not dicta, they clearly would not be applicable in this case.
Here there was no significant change in the size of the
workforce. Community identifies no evidence in the record
7
to distinguish between itself and the County with respect to
hiring and firing practices.
Nor do the changes in hours, wages, benefits, and manage-
ment to which Community points cast doubt upon the Board’s
finding of substantial continuity. See Harter Tomato Prods.
Co. v. NLRB, 133 F.3d 934, 938 (D.C. Cir. 1998) (changes in
‘‘size, wages, benefits, training, customer base, managerial
philosophy, and supplier contracts’’ do not preclude finding of
substantial continuity when other factors support continuity);
United Food & Commercial Workers Int’l Union, Local 152,
768 F.2d 1463, 1473–74 (D.C. Cir. 1985) (change of some
managerial and supervisory personnel, reduced number of
shifts, and minor modifications in production and job assign-
ments did not support Board’s finding lack of continuity).
Likewise, the types of changes in working conditions Commu-
nity claims to have made are consistent with a finding of
substantial continuity. See Pa. Transformer, 254 F.3d at 223
(significant reduction in number of ‘‘job classifications’’ and
increase in ‘‘employee responsibility and flexibility’’ not con-
trolling when ‘‘employees continue to do the same workTTTT
us[ing] the same skills and expertise’’).
Community contends the change it made in the patient care
model used at the hospital instituted a new ‘‘production
process’’ within the meaning of the Fall River Dyeing test.
We disagree. The critical point, as the Board notes in its
brief, is that the hospital ‘‘continued to function as a full-
service, acute-care hospital where registered nurses used the
same skills and equipment to provide care for the same
general patient population.’’ In sum, the nurses are doing
substantially the same work; only their reporting and super-
visory structure has changed. We do not think that amounts
to a change in the ‘‘production process.’’
B. Bargaining Unit
In reviewing the Board’s selection of a bargaining unit, we
are mindful that ‘‘the Board need only select an appropriate
unit, not the most appropriate unit.’’ Serramonte Oldsmobile,
Inc. v. NLRB, 86 F.3d 227, 236 (D.C. Cir. 1996). In addition,
the Board’s decision in this case is bolstered by two presump-
8
tions. First, a bargaining unit limited to a single facility is
presumptively appropriate. Manor Healthcare Corp., 285
N.L.R.B. 224, 224–25 (1987). This presumption may be re-
butted by a showing based upon such factors as ‘‘geographic
proximity, employee interchange and transfer, functional inte-
gration, administrative centralization, common supervision,
and bargaining history.’’ W. Jersey Health Sys., 293
N.L.R.B. 749, 751 (1989). Second, a group of employees with
a significant history of representation by a particular union
presumptively constitute an appropriate bargaining unit.
Trident Seafoods, 101 F.3d at 118. To rebut this presump-
tion requires a showing of ‘‘compelling circumstances’’ suffi-
cient to ‘‘overcome the significance of bargaining history.’’
Children’s Hosp. of San Francisco, 312 N.L.R.B. 920, 929
(1993) (ALJ opinion); see Defereit Paper Co. v. NLRB, 235
F.3d 581, 584 (D.C. Cir. 2000). The Board relied upon these
two presumptions, Order at 1, 18–20, in determining that a
bargaining unit consisting of the former Unit 7 nurses at the
hospital was appropriate.
Community argues first that the presumptions do not apply
in this case because there never was a bargaining unit
consisting only of Unit 7 nurses at the hospital; Unit 7
comprised nurses both at VMC and at other County-operated
facilities. Second, Community claims a bargaining unit con-
sisting only of the Unit 7 nurses located at UMC is not
appropriate, and any presumption to the contrary is rebutted,
because it has ‘‘fully integrated’’ UMC into its other opera-
tions. In support of the latter point, the employer relies upon
(1) the geographic proximity of UMC to Community’s other
facilities; (2) the ‘‘great deal of employee interchange among
[its] facilities’’; (3) its ‘‘integrated management structure’’
with ‘‘system-wide managerial responsibilities’’ and central-
ized administrative support; and (4) the elimination of certain
service functions at UMC, which according to Community,
means that a work stoppage at one of its facilities could ‘‘have
a significant adverse impact upon the continuity of patient
care’’ at the other facilities.
Community’s first argument would have us distinguish
between a previously recognized bargaining unit and a subset
9
of such a bargaining unit, limiting the presumption of appro-
priateness to the former. Community provides no authority
for this distinction and, as the Board points out in its brief, it
is inconsistent with our precedent. See Int’l Union of Elec.,
Radio & Mach. Workers, AFL–CIO–CLC, 604 F.2d 689, 696
(D.C. Cir. 1979) (affirming Board’s finding subset of historic
bargaining unit has relevant bargaining history).
That takes us to the question whether the evidence that
Community had fully integrated UMC’s operations with those
of its other facilities is sufficient to rebut the twin presump-
tions. We readily conclude it is not because we find persua-
sive Board precedent precisely on point. In Children’s Hos-
pital of San Francisco two hospitals had merged. The
nurses at Children’s Hospital had long been represented by
the CNA as part of a multi-employer unit. 312 N.L.R.B. at
921 & n.2. After the merger, the employer centralized and
consolidated many administrative, management, and training
functions, and equalized wages and benefits across the two
hospitals. Id. at 923–26. It also withdrew recognition from
the CNA on the ground that, because the greater number of
nurses were at the other hospital, and they were not union-
ized, the CNA no longer enjoyed majority status. Id. at 924.
The Board held that the nurses at Children’s Hospital alone
were an appropriate bargaining unit:
Children’s Hospital had a single facility employing regis-
tered nurses, and it dealt continuously with the Union as
the representative of those nurses in that facility. That
long term relationship was reasonably relied on by the
[ALJ] in finding that — where the proffered unit choices
are a unit consisting of the facility in which the bargain-
ing relationship had existed and a unit encompassing that
facility and another which lacked a similar bargaining
history — the single facility is an appropriate unit.
Id. at 920. The same is true in this case.
C. Good Faith Reasonable Doubt
Community raised as an affirmative defense that its refusal
to bargain with the Union was based upon its good-faith
10
reasonable doubt about the Union’s majority status. A good-
faith doubt is ‘‘a genuine, reasonable uncertainty about
whether [the Union] enjoy[s] the continuing support of a
majority of unit employees.’’ Allentown Mack Sales & Serv.,
Inc. v. NLRB, 522 U.S. 359, 367 (1998); see Order at 21. The
employer has the burden of proof on this issue, Scepter, Inc.
v. NLRB, 280 F.3d 1053, 1056 (D.C. Cir. 2002), and it must
prove not only that it had such a doubt but also that it
refused to recognize the union upon the basis of that doubt.
Miller Waste Mills, Inc., 334 N.L.R.B. 466, 2001 NLRB
LEXIS 485, at *18 (2001).
The ALJ, relying heavily upon Community’s failure to
respond to the General Counsel’s subpoena calling for docu-
ments relating to its claim of a good-faith reasonable doubt,
Order at 23, 18, found that (1) Community did not act in good
faith; (2) any doubt it had was not well-founded and was
unreasonable; and in any event (3) Community did not rely
upon such a doubt in refusing to recognize the Union. Id. at
21–24. Community claims each of these findings was errone-
ous.
We think the Board reasonably concluded Community
failed to demonstrate that, when it refused to bargain with
the Union, it relied upon such doubt as it may have had about
the Union’s majority status. That is reason enough to hold
the employer committed an unfair labor practice; we need
not concern ourselves with Community’s first two claims of
error.
Community disputes the ALJ’s finding that ‘‘the record
fails to demonstrate who made the decision [not to recognize
and bargain with the Union] and why it was made.’’ Order at
23. According to the employer, ‘‘the undisputed record evi-
dence demonstrates that [its] Board of Directors TTT decided
not to recognize and bargain with CNA after receiving input
from [a committee formed to study the issue] and outside
counsel.’’ Community points to a host of evidence it claims
demonstrates that its decision was based upon its doubts
about the Union’s majority status. Although a great deal of
that evidence arguably supports its contention that a good-
11
faith doubt would have been reasonable in the circumstances,
none of it shows that its decision in fact was based upon such
a doubt. For example, the testimony of nurses working at
UMC that they and many of their co-workers were dissatis-
fied with the Union, while relevant to whether those nurses
may have doubted the Union’s majority status, is not relevant
to the inquiry whether the employer made its decision based
upon any such doubt.
Although Community contends that the decision not to
recognize the Union was made by its board of directors, there
is no direct evidence in the record indicating when, how, or
even whether the directors made such a decision, or indeed
ever considered the matter. In the absence of any such
evidence, which is peculiarly within Community’s control –
and which the General Counsel had subpoenaed – the ALJ
was justified in inferring that if produced, the evidence would
have been unfavorable to the employer. Cf. United States v.
Young, 463 F.2d 934, 939 (D.C. Cir. 1972) (‘‘if a party has it
peculiarly within his power to produce witnesses whose testi-
mony would elucidate the transaction, the fact that he does
not do it permits an inference that the testimony, if produced,
would have been unfavorable’’). Community argues that
inference was inappropriate because the General Counsel
neither responded to its attempts to negotiate a mutually
agreeable redaction of documents responsive to the subpoena
nor sought enforcement of the subpoena. The ALJ would
have been justified in drawing the adverse inference, howev-
er, even if no subpoena had been issued. Moreover, the
result would have been the same even if he had not drawn the
inference. Community had the burden of showing it relied
upon a good-faith reasonable doubt; absent evidence of its
reliance, the ALJ had no need of an adverse inference to find
the employer did not meet its burden of proof.
Community objects that by demanding information about
its decision the Board was seeking to pry into the internal
deliberations of its directors and to require it to disclose
assertedly privileged documents. We find this argument
singularly unpersuasive. Initially we note that a party hold-
ing privileged information that could establish a claim or
12
defense as to which it has the burden of proof always faces
the difficult choice whether to produce that information.
Moreover, Community’s problem in this case is entirely of its
own making; the only reason the proceedings of its board of
directors are at issue is that it never responded to the CNA’s
request to bargain by explaining that it doubted the Union’s
majority status.
Instead of providing direct evidence of a decision by its
board of directors, Community points to testimony by mem-
bers of an ad hoc committee it formed to determine whether
to recognize the Union, and claims the full board decided not
to recognize the Union upon the recommendation of this
committee. In addition to being circumstantial, the testimo-
ny – primarily that of Michael McGinnis, Community’s Chief
Financial Officer, and of Eileen McCloskey, its human re-
sources manager – is not particularly helpful to the employer.
Although Ms. McCloskey did state her understanding that
the committee’s recommendation was based in part upon the
Union’s alleged minority status, Mr. McGinnis clearly sug-
gested that any fear the CNA would be a minority union was
based upon the UMC nurses being a minority of the full
complement of nurses (‘‘whole work force’’) at Community’s
three hospitals. As we have seen, however, the Unit 7 nurses
at UMC were by themselves an appropriate bargaining unit.
The possible minority status of the Union within a larger unit
has no bearing upon whether Community was required to
recognize and bargain with the Union; and a decision of the
board of directors based upon the recommendation of the
committee would be founded not upon a good-faith reasonable
doubt but upon a misconception.* Under these circum-
stances, substantial evidence supports the Board’s finding
that Community failed to carry its burden.
* At oral argument the court raised the question whether an
employer’s erroneous belief that a union does not represent a
majority of employees in the bargaining unit is a ‘‘good-faith
reasonable doubt’’ when that belief is based upon a mistake of law
about the size of the bargaining unit. Because Community did not
argue the point before the Board and on brief before us, however,
we need not decide it.
13
D. The Employee Handbook
The Board found that Community violated § 8(a)(1) of the
Act by maintaining Rules 1 and 8 in its Employee Handbook.
Those rules respectively prohibit ‘‘[i]nsubordination, refusing
to follow directions, obey legitimate requests or orders, or
other disrespectful conduct towards a [supervisor] or other
individual,’’ and ‘‘[r]elease or disclosure of confidential infor-
mation concerning patients or employees.’’ The Board was
concerned that an employee might interpret the term ‘‘disre-
spectful conduct’’ in Rule 1 to include solicitation of union
support or ‘‘concerted employee protest of supervisory activi-
ty,’’ and that such protected activity might be chilled as a
result. Order at 4. The Board was also concerned that an
employee might think Rule 8 prohibited discussion of such
subjects as wages and other terms of employment. Id. at 5.
There is no evidence in the record that the handbook provi-
sions actually chilled the protected activity of any employee.
Community raises the threshold objection that the Board
should not have passed upon this allegation because it was
not ‘‘factually related to’’ any of the allegations in the unfair
labor practice charge with which the Union initiated this
proceeding, see Lotus Suites, Inc. v. NLRB, 32 F.3d 588, 589
(D.C. Cir. 1994); Nickles Bakery of Ind., Inc., 296 N.L.R.B.
927, 928 (1989). Community admits it failed timely to raise
this issue at the hearing before the ALJ. Nevertheless,
Community argues the relatedness requirement is ‘‘jurisdic-
tional,’’ and can therefore be raised at any time. Not so.
The exception to the rule that an objection to an agency
decision must be timely raised before the agency in order for
the court to grant review is limited to jurisdictional chal-
lenges ‘‘that concern the very composition or constitution of
an agency.’’ Mitchell v. Christopher, 996 F.2d 375, 378 (D.C.
Cir. 1993) (internal quotation marks omitted). Community’s
challenge clearly is not of that nature; accordingly, its objec-
tion, not having been timely made, is forfeit.
We therefore turn to Community’s objection to the merits
of the Board’s decision. The Board holds that the ‘‘mere
maintenance’’ of a rule ‘‘likely to have a chilling effect’’ upon
14
employees’ rights to engage in activity protected by § 7 of
the Act is an unfair labor practice. Lafayette Park Hotel, 326
N.L.R.B. 824, 825 (1998). Where the Board ‘‘faithfully ap-
plies this standard TTT we will enforce its rulings,’’ but
‘‘where the NLRB adopts an unreasonable or otherwise inde-
fensible interpretation of’’ the requirements of the Act, we
will not. Adtranz ABB Daimler–Benz Transp., Inc. v.
NLRB, 253 F.3d 19, 25 (D.C. Cir. 2001).
Here the Board held Rule 1 was likely to discourage
‘‘concerted employee protest of supervisory activity’’ and ‘‘vig-
orous proselytizing for or against a union.’’ Order at 4.
Community maintains that, like the rule in Adtranz prohibit-
ing ‘‘abusive or threatening language,’’ 253 F.3d at 25 – which
we found, contrary to the Board, was lawful, id. at 25–28 –
Rule 1 is designed merely to ‘‘maintain a civil and decent
workplace,’’ id. at 25, and is well tailored to meet that goal
without chilling protected speech or conduct.
We agree. The Board objected chiefly to the Rule’s prohi-
bition of ‘‘other disrespectful conduct.’’ When read in con-
text, however, that prohibition clearly does not apply to union
organizing activity – including ‘‘vigorous proselytizing’’; it
applies to incivility and outright insubordination, in whatever
context it occurs. Although Community’s employees are
perhaps unlikely to know the term ejusdem generis, they no
doubt grasp as well as anyone the concept it encapsulates:
The ‘‘other disrespectful conduct’’ to which Rule 1 refers is
clearly conduct of a piece with ‘‘insubordination’’ or ‘‘refusing
to follow directions [or to] obey legitimate requests or or-
ders.’’ The Board’s suggestion that employees would consid-
er ‘‘vigorous proselytizing for or against a union,’’ or other
protected activity, ‘‘insubordinate’’ within the condemnation of
Rule 1, is implausible. In short, to quote the Board itself in a
more realistic moment, ‘‘any arguable ambiguity’’ in the rule
‘‘arises only through parsing the language of the rule, viewing
the phrase TTT in isolation, and attributing to the [employer]
an intent to interfere with employee rights.’’ Lafayette Park
Hotel, 326 N.L.R.B. at 825.
15
The Board’s concern with respect to Rule 8 was that
employees might understand the ‘‘[r]elease or disclosure of
confidential information’’ to include the revelation of ‘‘infor-
mation concerning terms and conditions of employment, in-
cluding wages,’’ Order at 5, the sharing of which is useful,
indeed perhaps essential, to successful self-organizing. Com-
munity again argues the rule must in reason be read more
narrowly to prevent disclosure only of ‘‘sensitive patient and
business information,’’ and not to prohibit discussion with
other employees or with union organizers of information
about the terms of one’s own employment.
Again we agree. The Board’s objection to this provision
appears to rest chiefly upon the possibility that an employee
might believe the rule prohibits him from revealing informa-
tion, such as wages or a disciplinary record, concerning
himself. Unlike the provision at issue in Brockton Hospital
v. NLRB, 294 F.3d 100, 106–07 (D.C. Cir. 2002), however, the
rule covers only ‘‘confidential’’ information. Confidential in-
formation is information that has been communicated or
acquired in confidence. A reasonable employee would not
believe that a prohibition upon disclosing information, ac-
quired in confidence, ‘‘concerning patients or employees’’
would prevent him from saying anything about himself or his
own employment. And to the extent an employee is privy to
confidential information about another employee or about a
patient, he has no right to disclose that information contrary
to the policy of his employer. Cf. Aroostook County Reg’l
Opthalmology Ctr. v. NLRB, 81 F.3d 209, 213 (D.C. Cir. 1996)
(‘‘The Board does not question [a hospital’s] right to require
employees to protect patient privacy’’).
III. Conclusion
For the foregoing reasons, Community’s petition for review
is granted and the Board’s application for enforcement denied
insofar as each concerns the Board’s holding that Rules 1 and
8 of Community’s employee handbook violated the Act. In all
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other respects the petition is denied and the application for
enforcement granted.
So ordered.