HealthBridge Management, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2015 Decided August 18, 2015

No. 14-1101

HEALTHBRIDGE MANAGEMENT, LLC, ET AL.,

PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 14-1116

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Erin E. Murphy argued the cause for petitioners. With her

on the briefs were Paul D. Clement and William R. Levi.

Jared D. Cantor, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Richard F. Griffin, Jr., General Counsel, John H.

Ferguson, Associate General Associate, Linda Dreeben,

Deputy Associate General Counsel, and Julie B. Broido,

Supervisory Attorney.

2

Before: HENDERSON, PILLARD and WILKINS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

Opinion concurring in part and dissenting in part filed by

Circuit Judge HENDERSON.

WILKINS, Circuit Judge: This case arises out of a labor

dispute at six nursing homes in Connecticut operated by

Petitioner HealthBridge Management. After a regional office

of the National Labor Relations Board issued a complaint

against HealthBridge alleging that it unfairly terminated

housekeeping employees, the union that represents employees

at the nursing homes distributed stickers and flyers asserting

that HealthBridge had been “busted” for “violating federal

labor law.” Employees posted the notices on union bulletin

boards, and some wore the stickers in various areas of the

nursing homes where they worked. HealthBridge took down

the flyers and ordered its workers to remove the stickers while

working in patient care areas. The Board concluded that the

company’s conduct violated section 8(1)(a) of the National

Labor Relations Act. HealthBridge petitioned for review of

the Board’s order, and the Board petitioned for enforcement.

For the reasons discussed below, we deny the petition for

review and grant the cross-application for enforcement.

I.

Petitioners in this case are HealthBridge Management,

LLC (“HealthBridge”) and six long-term nursing care centers

the firm operates in Connecticut (the “Centers”). The Centers

provide convalescent and long-term nursing care and cater to

primarily elderly residents. The New England Health Care

Employees Union, District 1199, SEIU, AFL-CIO (the

3

“Union”) serves as the exclusive bargaining unit for non-

managerial healthcare employees at the six Centers.

HealthBridge and the Centers have historically permitted

employees to wear Union insignia at all times in both patient

care and non-patient care areas. See Healthbridge Mgmt.,

LLC, 360 N.L.R.B. No. 118, 2014 WL 2194550, at *7 (May

22, 2014). Collective bargaining agreements (the

“Agreements”) between the Union and the Centers provide

that the Centers must make bulletin boards available for the

display of “proper Union notices” in “a location conspicuous

and accessible to workers.” E.g., J.A. 1117 (Art. 6(D)).

In March 2011, when the events that gave rise to this case

occurred, HealthBridge and the Union were engaged in a

contentious renegotiation of the Agreements, which were set

to expire March 16, 2011. Shortly before that date,

HealthBridge sent a series of letters to residents of the Centers

and their families informing them of its side of the dispute.

HealthBridge told residents that the healthcare industry was

rapidly changing, and that in order to compete with lower-cost

providers, it must make changes to the Agreements, since its

prior bargain with the Union was “simply no longer

sustainable.” J.A. 1073-77. The letters described the Union

as an intractable negotiating partner with a “‘take-it-or-leave-

it’ approach,” and warned that the Union had threatened to

call a strike if it did not get what it wanted. J.A. 1078-81.

HealthBridge told its residents and their families that the

Union “ha[d] a long history” of calling strikes, but that it had

a contingency plan to continue services uninterrupted by

hiring replacement employees if the current nursing staff went

on strike. J.A. 1073-77.

On March 21, 2011, the Board’s Region 34 filed a

complaint against HealthBridge alleging that three of the

4

Centers discharged or threatened certain housekeeping

employees in violation of the National Labor Relations Act

(the “Act” or “NLRA”). Four days later, the Union

distributed stickers to employees at each of the Centers

declaring – in a message superimposed over a black-and-

white image of a gavel – that the Centers had been “BUSTED

March 21, 2011 By National Labor Board For Violating

Federal Labor Law.” J.A. 1029, 1050. The Union also posted

flyers on Union bulletin boards at the Centers stating that

HealthBridge had been “BUSTED” and that the company

“will do ANYTHING—even violate labor law—in [its]

ruthless pursuit of more profit.” J.A. 1062-67. The flyers

advised readers that “[o]n March 21st, the National Labor

Relations Board issued an 18-page federal complaint against

[HealthBridge] for massive violations of federal law” and

asserted that HealthBridge was trying to provoke a strike by

“refusing to sign a contract extension like most other nursing

home operators” and was “exploiting the elderly and their

caregivers by lying, cheating and even law-breaking.” Id.

Lisa Crutchfield, HealthBridge’s Senior Vice President of

Labor Relations, held a conference call that day with

managers at the Centers instructing them to prohibit

employees from wearing the stickers when working in

resident-care areas or providing care to residents. She told

managers to ask employees who refused to observe the policy

to punch their time-cards out and leave the premises. At two

Centers, management banned employees from wearing the

stickers in any area of the facility, including non-patient care

areas. Healthbridge, 2014 WL 2194550, at *7. Crutchfield

also instructed managers at the Centers to remove the flyers

from the bulletin boards. A week later, HealthBridge sent

additional letters to residents and their families, informing

them about the flyers, which it said were “full of misleading

and false statements . . . designed to try and harm the

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reputation of our Center in the community.” J.A. 1083-85.

The letters set forth HealthBridge’s position on the

“completely baseless” allegations in the Board’s March 21

complaint, explained that there had not yet been any hearing

or ruling in the case, and declared that HealthBridge planned

to mount a robust defense. Id.

The Union filed charges with the Board concerning the

sticker ban and flyer removals. The Board subsequently filed

complaints alleging that HealthBridge’s actions “interfer[ed]

with, restrain[ed], and coerc[ed HealthBridge’s] employees in

the exercise of” their right to collective bargaining under

section 7 of the Act, 29 U.S.C. § 157, in violation of section

8(a)(1) of the Act, id. § 158(a)(1). J.A. 32.

At a hearing before an ALJ, Crutchfield testified that she

ordered the stickers banned from patient care areas out of

concern for residents, who might think HealthBridge had

committed a crime that could impact resident care.1 J.A. 799-

1

Specifically, Crutchfield averred:

My concern was that if a resident was being cared for by

somebody wearing this sticker it may cause confusion. The

resident may not understand what – the sticker itself says

busted with a judge’s gavel. And it’s saying that the center

was busted. It suggests some kind of crime. I was concerned

that residents would think – would not understand this was

related to a labor matter and might be concerned for a larger

issue. What is happening here at this center? Has this center

been convicted of a crime? Is that impacting the care that I’m

receiving? So my concern was that residents may be upset by

this, may not understand it and it may create confusion and

disruption for them.

J.A. 799-800.

6

800. HealthBridge also produced an expert on geriatric

nursing care, Dr. Ilene Warner-Maron, who testified that the

“busted” sticker could have posed a risk to the emotional

wellbeing of vulnerable nursing home residents dependent on

staff to render care. She testified that the word “busted” has a

negative connotation that suggests arrest or bankruptcy, and

that seeing the word, printed in red lettering on a sticker worn

by their caregivers, could cause residents to become “agitated,

upset, worried, [or] concerned.” J.A. 721. Warner-Maron

also told the ALJ that the sticker’s statement that the Centers

had violated the law could lead residents to fear that their

nursing home would be closed, and they would be transferred

to a new facility, an assertion she believed could be a form of

emotional abuse. She admitted, however, that she did not

speak with any residents, family members, or caregivers at

any of the Centers in forming her opinion.

Crutchfield testified that she ordered the flyers removed

because she did not consider them “proper” within the

meaning of the Agreement provision permitting the Union’s

use of bulletin boards. She found them improper because

they were “disparaging,” “derogatory,” and “defamatory”

toward HealthBridge and falsely suggested that HealthBridge

did not care about its residents or employees.2 J.A. 774, 778.

Crutchfield had previously asked her subordinates to remove

other notices, including flyers stating that HealthBridge had

robbed employees of vacation time, had “kick[ed employees]

out the door,” J.A. 810-11, would “[t]ake away every single

thing we’ve fought for,” and would “turn our nursing home

into a sweatshop,” J.A. 1055-60. Other notices Crutchfield

removed included postings updating Union members on

2

Asked for examples of a “proper” notice, Crutchfield listed those

informing Union members about the date and time of meetings,

contract negotiations, and other Union-related events.

7

changes HealthBridge sought to the terms of the Agreements.

She did not communicate with or seek to inform anyone in the

Union before removing the flyers. Crutchfield acknowledged

that the Agreements did not expressly authorize HealthBridge

to remove Union notices from the bulletin boards.

The ALJ determined that HealthBridge violated section

8(a)(1) of the Act by removing the flyers and banning the

stickers from patient care areas at the six Centers (as well as

non-patient areas at two of the Centers). A three-member

panel of the Board voted unanimously to uphold the charges

against HealthBridge related to the flyer removal, but split

two-to-one in favor of the Union on whether the sticker ban

contravened the Act. The Board determined that the

prohibition on the stickers was presumptively invalid and

could only be overcome by a showing of special

circumstances, endorsing the ALJ’s view of the case.3 The

Board said it did not require “actual harm or a disturbance to

patients” for a showing of special circumstances, but that

Crutchfield and Warner-Maron’s “general and speculative

testimony” was insufficient, since neither testified “based on

any specific experience with a patient, family member, or

3

The ALJ had concluded that, although a health care center’s ban

on all non-employer insignia in patient care areas is presumptively

valid, a selective ban on only certain union insignia is not entitled

to a presumption of validity, and can only be justified by a showing

of special circumstances. Healthbridge, 2014 WL 2194550, at *7

(citing Saint John’s Health Ctr., 357 N.L.R.B. No. 170, 2011 WL

7052273, at *1-2 (2011)). He determined that HealthBridge could

not demonstrate special circumstances, which would have required

proof that the ban was “necessary to avoid disruption of health care

operations or disturbance of patients,” because there was no

evidence to support Crutchfield’s “speculative” belief that the

stickers would cause resident concerns, and Warner-Maron’s post-

hoc expert testimony had not served as the basis of the ban. Id.

8

employee,” and Warner-Maron had not even spoken to any

residents or caregivers at the Centers. Healthbridge, 2014

WL 2194550, at *3. The majority also found the fact that

HealthBridge had itself repeatedly written to inform residents

about the very labor unrest that it claimed they would find

upsetting significantly weakened the force of Crutchfield’s

and Warner-Maron’s testimony. Id.

The entire panel agreed that HealthBridge was not

entitled to remove the flyers because it did not produce any

evidence to suggest the Agreements permitted it to

unilaterally interpret what was a “proper” notice and remove

items it considered improper. Id. at *1.4

In a partial dissent, Member Miscimarra contended that

bans on union insignia in patient care areas, categorical or not,

are always presumptively valid, and that the majority’s logic

would require HealthBridge to show patients actually were

upset by the stickers in order to demonstrate special

circumstances. Id. at *6. He argued such a requirement

would force healthcare employers to allow their union

practices to harm patients in order to demonstrate their actions

were justified in a subsequent proceeding before the Board.

He also argued that, even though she was not engaged as an

expert until after the conduct at issue, Warner-Maron’s

testimony was relevant to determining the existence of special

4

The ALJ concluded that the Union’s use of the term “busted” on

the flyers was not inaccurate, given that the Board had issued a

complaint against HealthBridge for violations of labor law, and that

even if the flyers’ statements were inaccurate, “at most, it would

constitute ‘biased, prounion opinion,’” which was insufficient to

empower HealthBridge to remove them. Healthbridge, 2014 WL

2194550, at *7 (quoting Roll & Hold Warehouse & Distrib. Corp.,

325 N.L.R.B. 41, 51 (1997)).

9

circumstances, because it bolstered Crutchfield’s reasoning.

Id. at *6 n.6.

HealthBridge filed a petition for review in this Court.

See 29 U.S.C. § 160(f). The Board petitioned for enforcement

of its order. See id. § 160(e).

II.

The Court upholds the Board’s findings of fact if

supported by “substantial evidence on the record considered

as a whole.” 29 U.S.C. § 160(e), (f). The Court owes

“substantial deference” to the Board’s factual inferences from

the record before it, Halle Enters., Inc. v. NLRB, 247 F.3d

268, 271 (D.C. Cir. 2001) (internal quotation mark omitted),

and “[w]hen the Board concludes that a violation of the Act

has occurred, [the Court] must uphold that finding unless it

has no rational basis or is unsupported by substantial

evidence.” Tenneco Auto., Inc. v. NLRB, 716 F.3d 640, 647

(D.C. Cir. 2013) (internal quotation mark omitted). “It is not

necessary that we agree that the Board reached the best

outcome in order to sustain its decisions.” Bally’s Park

Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)

(internal quotation marks omitted). As for rules the Board

creates for resolution of the matters that come before it, “[t]he

judicial role is narrow: The rule which the Board adopts is

judicially reviewable for consistency with the Act, and for

rationality, but if it satisfies those criteria, the Board’s

application of the rule . . . must be enforced.” Beth Israel

Hosp. v. NLRB, 437 U.S. 483, 501 (1978). In reviewing the

Board’s decision, the Court must consider the “whole record,”

including not only materials that support the Board’s findings

but also “whatever in the record fairly detracts from its

10

weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474,

488 (1951).5

Under section 8(a)(1) of the NLRA, it is an unfair labor

practice for an employer “to interfere with, restrain, or coerce

employees in the exercise of” employees’ section 7 right to

“self-organization, to form, join, or assist labor organizations,

to bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or

protection.” 29 U.S.C. §§ 157, 158(a)(1). The right to self-

organize “necessarily encompasses the right effectively to

communicate with one another regarding self-organization at

the jobsite.” Brockton Hosp. v. NLRB, 294 F.3d 100, 103

(D.C. Cir. 2002) (quoting Beth Israel Hosp., 437 U.S. at 491).

The workplace is, in fact, a particularly appropriate place for

employees to communicate about self-organization, since it

“is the one place where [employees] clearly share common

interests and where they traditionally seek to persuade fellow

workers in matters affecting their union organizational life

and other matters related to their status as employees.”

Eastex, Inc. v. NLRB, 437 U.S. 556, 574 (1978) (alteration in

original) (internal quotation marks omitted).

The Board has long recognized that employees have the

right to wear union insignia in the workplace. Washington

State Nurses Ass’n v. NLRB, 526 F.3d 577, 580 (9th Cir.

2008) (citing London Mem’l Hosp., 238 N.L.R.B. 704, 708

(1978)). Bans on union insignia in the workplace are

5

Our dissenting colleague, while acknowledging the deferential

nature of our review of Board findings of fact, nonetheless picks

apart the Board’s findings because the Board did not credit all of

HealthBridge’s evidence and did not give HealthBridge the benefit

of all inferences. That approach is decidedly inconsistent with the

deferential inquiry Congress has imposed on us in the NLRA.

11

therefore presumptively invalid, absent a showing by the

employer of “special circumstances” to support the ban. See

Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-04 n.10

(1945). In the healthcare context, establishing “special

circumstances” requires evidence that a ban is “necessary to

avoid disruption of health-care operations or disturbance of

patients.” Beth Israel Hosp., 437 U.S. at 507.

In healthcare facilities, however, this rebuttable

presumption applies only to areas where patients are not cared

for. In “immediate patient care areas,” bans on union insignia

are not presumptively invalid. NLRB v. Baptist Hosp., Inc.,

442 U.S. 773, 778 (1979); Sutter East Bay Hosps. v. NLRB,

687 F.3d 424, 433 (D.C. Cir. 2012). Immediate patient care

areas include “patients’ rooms, operating rooms, and places

where patients receive treatment, such as x-ray and therapy

areas.” Baptist Hosp., 442 U.S. at 780 (quoting St. John’s

Hosp. and Sch. of Nursing, Inc., 222 N.L.R.B. 1150, 1150

(1976)). The rationale for this rule is the need to “maintain[]

a peaceful and relaxed atmosphere,” since

Hospitals, after all, are not factories or mines or assembly

plants. . . . [T]he patient and his family—irrespective of

whether that patient and that family are labor or

management oriented—need a restful, uncluttered,

relaxing, and helpful atmosphere, rather than one

remindful of the tensions of the marketplace in addition

to the tensions of the sick bed.

Baptist Hosp., 442 U.S. at 783-84 n.12 (quoting Beth Israel

Hosp., 437 U.S. at 509 (Blackmun, J., concurring in

judgment)).

12

A.

We first address HealthBridge’s challenge to the rule the

Board applied in this case, which the firm argues is irrational

and upsets the proper balance between employees’ rights and

healthcare providers’ responsibilities to patients. In Saint

John’s Health Center, 357 N.L.R.B. No. 170, 2011 WL

7052273, at *1-2 (2011), the Board determined that only

categorical employer bans on insignia in patient care areas are

presumptively valid. Where, conversely, an employer banned

only certain union insignia in those areas, the Board would

consider the ban presumptively invalid because, “[h]aving

allowed other types of insignia to be worn in immediate

patient care areas, the [hospital] may not now rely on the

protection of the presumption of validity applicable to an

across-the-board ban to justify its selective ban of only the

specific union insignia at issue.” Id. at *2.

HealthBridge now asks us to overturn this presumption

against selective insignia bans, but it gave the Board no

opportunity to reconsider the presumption in the first instance.

As relevant here, its exceptions to the ALJ’s findings and

conclusions of law challenge only (1) the ALJ’s determination

that HealthBridge did not establish special circumstances that

justified its sticker ban, and (2) the ALJ’s discounting of

Warner-Maron’s testimony. Nor did HealthBridge’s detailed

brief before the Board challenge the Board’s presumption

against selective bans; there, HealthBridge merely cited Saint

John’s as controlling authority without asking the Board to

alter its policy. Brief in Support of Respondent’s Exception

to Administrative Law Judge’s Decision at 19, 33,

Healthbridge, 360 N.L.R.B. No. 118 (Aug. 17, 2012). In that

forum, HealthBridge contended only that its selective insignia

ban was consistent with Saint John’s. And HealthBridge did

not seek reconsideration by the Board even though the Board

13

split on the validity of its sticker ban and one member

explicitly questioned the rationale of Saint John’s in dissent.

Only now, having obtained an unfavorable outcome from the

Board, has HealthBridge changed tack, and it devotes the

heart of its opening brief before this Court to arguing that the

presumption is contrary to the Act. See Petitioner’s Br. at 25-

33.

Under section 10(e) of the Act, “[n]o objection that has

not been urged before the Board . . . shall be considered by

the court,” absent extraordinary circumstances. 29 U.S.C. §

160(e); see also Woelke & Romero Framing, Inc. v. NLRB,

456 U.S. 645, 665 (1982); Brockton Hosp., 294 F.3d at 105-

06. The Board’s rules require parties to “set forth specifically

the questions of procedure, fact, law, or policy to which

exception is taken” and “concisely state the grounds for the

exception,” or risk waiver. 29 C.F.R. § 102.46(b). This rule

“serves a sound purpose” and we are bound by it. Detroit

Edison Co. v. NLRB, 440 U.S. 301, 311 n.10 (1979). Indeed,

the Board’s order in Saint John’s was issued eight months

before HealthBridge filed its exceptions and accompanying

brief, and its brief indicates HealthBridge was aware of the

policy. HealthBridge had ample time to argue to the Board

that the presumption is an impermissible reading of the Act.

HealthBridge claims we should overlook its failure to

apprise the Board of its claim, since the Board “explicitly

addressed the validity of the policy, both in the majority

opinion and in the partial dissent.” Petitioners’ Reply at 8

(emphasis omitted). This is hard to square with the language

of the Board’s order, which merely restates the selective ban

presumption and applies it without discussing the virtues of

the rule or the extent to which it comports with the Act and its

purposes. See Healthbridge, 2014 WL 2194550, at *2-4.

True, the dissenting member explicitly questioned the wisdom

14

of the presumption. See id. at *6. But even if this gave the

majority notice the presumption itself was at issue, it is

insufficient to invoke our jurisdiction. HealthBridge contends

that “the critical question in satisfying section 10(e) is

whether the Board received adequate notice,” Petitioner’s

Reply at 8, but “section 10(e) bars review of any issue not

presented to the Board, even where the Board has discussed

and decided the issue,” Alwin Mfg. Co. v. NLRB, 192 F.3d

133, 143 (D.C. Cir. 1999) (emphasis added). Where the

Board addresses an issue not raised by the parties, the party

aggrieved can preserve its claim for judicial review by

seeking reconsideration by the Board. Woelke, 456 U.S. at

665-66; see 29 C.F.R. § 102.48(d) (providing for

“reconsideration, rehearing, or reopening of the record after

the Board decision or order”). But HealthBridge never sought

reconsideration in this case. HealthBridge failed to put this

issue before the Board, and we consequently lack jurisdiction

over this aspect of its petition.6

6

HealthBridge also contests as retroactive the Board’s application

of its presumption against selective insignia bans in patient care

areas in this case. Petitioners’ Br. at 32-33. Under this Circuit’s

law, “retroactive effect is appropriate” for adjudicatory rules—such

as those articulated in Saint John’s—that are “new applications of

existing law, clarifications, and additions” rather than the

“substitution of new law for old law that was reasonably clear.”

Verizon Tel. Cos. v. FCC, 269 F.3d 1098, 1109 (D.C. Cir. 2001)

(internal citation omitted). Saint John’s constituted, at most, a

more conclusive statement of the Board’s prior position. See Mt.

Clemens Gen. Hosp., 335 N.L.R.B. 48, 50 (2001) (stating that the

“normal[]” presumption of validity for bans on union insignia in

patient care areas does not apply to a ban on one item where “other

insignia or union buttons” are permitted). Moreover, although

HealthBridge states that it “plainly relied in good faith on the

traditional presumption of validity [of insignia bans] in patient-care

areas” in banning the “busted” stickers, Petitioner’s Reply at 9, it

“fail[s] to identify any likely type of reliance.” Dist. Lodge 64, Int’l

15

B.

We find the Board’s conclusion that HealthBridge failed

to demonstrate special circumstances in support of its ban

supported by substantial evidence in the record. Our review

of the Board’s determination is necessarily limited, as “the

function of striking th[e] balance [between employer and

employee rights] to effectuate national labor policy is often a

difficult and delicate responsibility, which the Congress

committed primarily to the National Labor Relations Board,

subject to limited judicial review.” NLRB v. Local 103, Int’l

Ass’n of Bridge, Structural & Ornamental Iron Workers, 434

U.S. 335, 350 (1978) (original alterations omitted) (quoting

NLRB v. Truck Drivers Local 449, Int’l Brotherhood of

Teamsters, 353 U.S. 87, 96 (1957)). Under this deferential

standard of review, HealthBridge fails to demonstrate that the

Board’s finding had no rational basis or was unsupported by

substantial evidence.

Crutchfield testified that she thought residents who saw

the stickers “would not understand this was related to a labor

matter” and might fear the Centers had been “convicted of a

crime,” J.A. 799-800, but the stickers clearly stated that the

company had been busted by the “National Labor Board For

Violating Federal Labor Law,” J.A. 1050 (emphasis added).

Ass’n of Machinists & Aerospace Workers v. NLRB, 949 F.2d 441,

448 (D.C. Cir. 1991). It could not, for instance, have reacted by

enacting a wholesale ban on insignia in patient care areas; that ship

had already sailed because it had long permitted other Union

buttons in those areas. What HealthBridge seems to be saying is

that, had it known it would have to establish special circumstances

to justify its ban, it would have done more to determine whether

patients would actually find the stickers disturbing, but since it

claims patient concerns alone animated its ban, it should have done

that anyway.

16

Far from Crutchfield’s and Warner-Maron’s surmise that

residents would fear the shutdown of their facility and transfer

to another home, the stickers made plain that the Centers had

been accused of mistreating employees, not residents. An

employer’s violation of labor law is quite different from a

criminal conviction, and HealthBridge introduced no evidence

to demonstrate that its residents would think otherwise.

Moreover, its own letters made clear that the charges

stemmed from alleged labor law violations, not any infraction

related to patient care.

The Board was justified in finding that it would be

irrational to assume that residents would become distraught

and traumatized by a two-and-a-half inch, ten-word sticker

suggesting their nursing home had been caught violating labor

law, but would be reassured by HealthBridge’s repeated and

detailed letters to residents and their family members

threatening an imminent Union strike that could lead to

replacement of the entire staff that cared for their most basic

needs. The Board rightly attributed significance to

HealthBridge’s stream of strike-related correspondence, sent

at the same time it prohibited employees from wearing the

“busted” stickers. See Healthbridge, 2014 WL 2194550, at

*3.

HealthBridge claims that the letters were designed to

calm residents’ fears, demonstrating the “basic disconnect

between the Board’s reasoning and the resident-care concerns

that actually animated [HealthBridge’s] actions.” Petitioners’

Br. at 36. But the Board reasonably concluded that if the

letters were intended to comfort, they were drafted

exceptionally poorly. HealthBridge’s missives invoked the

specter of labor unrest and potential walkouts by nurses and

other healthcare workers at the Centers. HealthBridge’s own

expert conceded on cross-examination that communications to

17

residents that “imply that they might lose the care of . . . their

direct care provider” could constitute emotional abuse. J.A.

740-42. As the Board points out in its brief, “Crutchfield . . .

did not explain why, if [HealthBridge] deemed it appropriate

to present residents with this parade of horribles,” it should be

expected to believe residents would have been disturbed by

the stickers’ message that the firm had violated labor law.

Respondent’s Br. at 20. As we have previously noted, “[w]e

give the Board even greater deference with respect to

questions of fact that turn upon motive,” Capital Cleaning

Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir.

1998), and here, the Board could reasonably consider

“whether [HealthBridge’s banning of the “busted” stickers]

was based upon anti-union animus,” id.

One can easily see how the Board could conclude that

HealthBridge’s letters were intended to present

HealthBridge’s side of renegotiation and to elicit sympathy

for its bargaining position, rather than calm patients. See,

e.g., J.A. 1083-85 (describing Union flyers as “full of

misleading and false statements . . . designed to try and harm

the reputation of our Center[s] in the community” and

characterizing the Board’s March 21 complaint as

unfounded). In confronting similar attempts by healthcare

employers to stifle union solicitation, we have held that

employer discrimination between a union’s message about a

labor dispute and the employer’s own public communications

on the same issue seriously weakens the justification for a

ban. Stanford Hosp. and Clinics v. NLRB, 325 F.3d 334, 339

(D.C. Cir. 2003). We decline to sanction a blatant double

standard in favor of employers in this case.

HealthBridge also failed to adduce evidence showing the

stickers were objectively disturbing. In Baptist Hospital, the

Supreme Court held that the “extensive” testimony of two

18

physicians at the hospital that they had observed care

disrupted when patients thought their doctor was focused on

anything other than patient care “related [the ban on

solicitation] directly to the well-being of patients.” 442 U.S.

at 782-83. Key to Baptist Hospital’s finding of special

circumstances was the doctors’ and an administrator’s ability

to “tie[] the need for tranquility to past experiences with

patients.” Washington State Nurses Ass’n, 526 F.3d at 584

(citing Baptist Hosp., 442 U.S. at 783-84); see also Mt.

Clemens General Hospital. v. NLRB, 328 F.3d 837, 847 (6th

Cir. 2003) (evidence required to rebut a presumption of

invalidity must go beyond mere “speculation”).

In contrast, HealthBridge produced no testimony from

any healthcare professional drawn from experience in caring

for patients at the Centers. The only HealthBridge employee

who testified in support of the sticker prohibition was

Crutchfield, an attorney who testified that her duties are to

“oversee the development of labor relations strategy,” human

resources, and implementation of collective bargaining

agreements. J.A. 766.

Furthermore, the Board reasonably found that

Crutchfield’s and Warner-Maron’s testimony was speculative

and conjectural. Crutchfield traced her opinion to no actual

interactions with or comments from residents, family

members, or employees. She cited no evidence showing the

likelihood that patients would be harmed, either empirical or

anecdotal. Nor did she attempt to differentiate the “busted”

stickers from other insignia HealthBridge had permitted in the

past. See Washington State Nurses Ass’n, 526 F.3d at 584

(testimony that nurse managers had expressed their concern

about the impact of buttons on patients did not show how

prohibited buttons differed from similar buttons worn before

that “caused no ill effects”); Mt. Clemens Gen. Hosp., 328

19

F.3d at 848 (no justification for ban on buttons protesting

“forced overtime” in intensive care units because hospital did

not show “openly contentious” buttons previously worn in

patient care areas were “singularly disturbing and

disruptive”).

HealthBridge contends that the Board held it to a

standard contrary to our precedent by requiring it show

“actual complaints from residents.” Petitioners’ Br. at 33; see

Brockton Hosp., 294 F.3d at 104 (a hospital need only show

“a likelihood of, not actual, disruption or disturbance”) (citing

Baptist Hosp., 442 U.S. at 781 n.11). The Board did no such

thing. In fact, it clarified that it did “not require actual harm

or a disturbance to patients.” Healthbridge, 2014 WL

2194550, at *4. The infirmity in Crutchfield’s testimony was

that it was “not based on any specific experience with a

patient, family member, or employee” or “specific evidence

of harm or likelihood of harm to patients from employees

wearing the sticker.” Id. at *3.

Likewise, when it demanded that Warner-Maron’s

opinion be “informed by actual information about or

experience with the facilities, their staff, or their patients” or

by speaking to “patients, family members or care givers,” the

Board was not requiring the stickers be shown to patients, but

rather that she speak to them to gauge whether they were

sufficiently vulnerable that the stickers would confuse or

upset them. Id. at *3. Had Warner-Maron actually spoken

with residents or caregivers, she could have determined what

sort of phrases or images would endanger them and whether

HealthBridge’s own attempts to contextualize the Board’s

complaint would assuage potential fears. Instead of asking

patients about what they would find upsetting, however,

Warner-Maron’s opinion rested on googling the word

“busted” and concluding the results would upset elderly

20

residents.7 Her speculation, untethered as it was from any

patient or staff interviews or visits to the Centers, was of little

use in determining why these stickers, in contrast to the

insignia nurses have worn in the past, merited prohibition.

The dissent’s point about expert evidence is misplaced.

It is, of course, true that, for expert evidence to be admissible,

it need not be based on eyewitness observation of the conduct

at issue in a case, but the Board as fact-finder was entitled to

determine the weight it would accord Warner-Maron’s

evidence. The Board could reasonably discount her testimony

not only because her entire review of materials in preparation

for the hearing was comprised of looking at the stickers and

using her internet browser to look up the word “busted,” but

also because her concerns about the “busted” sticker could

reasonably be deemed inconsistent with her lack of concern

with the patient letters sent by HealthBridge and the other

union insignia that HealthBridge had previously allowed. The

Board could reasonably agree with the ALJ’s assessment that

Warner-Maron’s opinion was speculative and of the same ilk

as the ipse dixit that courts routinely discount as entitled to

little, if any, weight. Cf. Gen. Elec. Co. v. Joiner, 522 U.S.

136, 146 (1997). “Since the Board is obviously best situated

to assess the credibility and demeanor of [expert] witnesses,

this court must defer to that judgment so long as it is

reasonable.” Carstens v. Nuclear Regulatory Comm’n, 742

F.2d 1546, 1553 (D.C. Cir. 1984).

7

HealthBridge caricatures the Board’s concerns as relating to the

fact that Warner-Maron “used Google to look up the definition of a

word instead of, apparently, consulting a paper copy of Websters.”

Petitioners’ Reply Br. at 10 n.2. In fact, the Board considered her

testimony insufficient because it did not elucidate what a patient—

rather than an internet search engine—would have thought the term

“busted” meant.

21

Our role is not to substitute our judgment for that of the

Board; “[r]ather, a reviewing court must ‘ask whether a

reasonable mind might accept a particular evidentiary record

as adequate to support a conclusion.’” HARRY T. EDWARDS &

LINDA A. ELLIOTT, FEDERAL STANDARDS OF REVIEW:

APPELLATE REVIEW OF DISTRICT COURT DECISIONS AND

AGENCY ACTIONS 176 (2007) (quoting Dickinson v. Zurko,

527 U.S. 150, 162 (1999)). “Or, put differently, . . . whether,

on the record under review, ‘it would have been possible for a

reasonable jury to reach the [agency’s] conclusion.’” Id.

(alterations in original) (quoting Allentown Mack Sales &

Serv., Inc. v. NLRB, 522 U.S. 359, 366–67 (1998)).” The

Board’s conclusion that HealthBridge’s ban on the “busted”

stickers violated section 8(a)(1) meets this standard, and it is

therefore supported by substantial evidence in the record.8

III.

The Board’s finding that HealthBridge violated the

NLRA by removing the “busted” notices from Union bulletin

boards also finds substantial support in the record. Having

extended the right to post Union notices on designated

bulletin boards, the company was not free to remove them

unilaterally based on its conclusion that they were

“disparaging” or inaccurate.

Unions and employees have “no statutory right . . . to use

an employer’s bulletin board.” NLRB v. Honeywell, Inc., 722

F.2d 405, 406 (8th Cir. 1983) (internal quotation mark

omitted). However, once an employer permits employees

8

HealthBridge did not challenge the ALJ’s finding that two of its

Centers banned nurses from wearing the “busted” stickers in non-

patient care areas in its exceptions to the Board. It has therefore

waived this argument. See 29 U.S.C. § 160(e); 29 C.F.R. §

102.46(b).

22

access to a bulletin board, the union’s right to post takes on

the protection of section 7 of the Act. Union Carbide Corp. v.

NLRB, 714 F.2d 657, 660-61 (6th Cir. 1983). Naturally, an

employer that grants employees or a union access to bulletin

boards may use its collective bargaining agreement (or past

practice) to impose “limitations, restrictions, and regulations”

on those rights, Stevens Graphics, Inc., 339 N.L.R.B. 457,

461 (2003), but it cannot discriminate against union-related

material without violating the Act. NLRB v. Southwire Co.,

801 F.2d 1252, 1256 (11th Cir. 1986). “The critical question

is whether the employer is discriminating against union

messages, or if it has a neutral policy of permitting only

certain kinds of postings.” Loparex LLC v. NLRB, 591 F.3d

540, 545 (7th Cir. 2009) (citing Fleming Cos. v. NLRB, 349

F.3d 968, 975 (7th Cir. 2003)).

At the outset, it is worth noting that the Union bulletin

boards were located in employee break rooms. Thus,

HealthBridge cannot argue that it removed the flyers to

protect patients because the flyers, unlike the stickers, were

not placed where patients would see them. The flyers could

not pose any threat of upsetting patients, but HealthBridge

argues that it was entitled to remove them as not “proper”

postings under the Agreements and as unprotected Union

speech under the NLRA.

HealthBridge argues that the Agreements’ requirement

that Union notices be “proper” permitted it to adopt a policy

mandating the removal of “derogatory, disparaging, or

inaccurate postings.” Petitioners’ Br. at 40.9 Presumably,

9

HealthBridge’s argument that the Board should have resolved the

flyers issue under section 8(a)(5) – which relates to the

implementation of collective bargaining agreements – is mistaken.

First, the Supreme Court long ago held that the Board is

empowered to interpret a collective bargaining agreement in the

23

since Crutchfield “discretely [sic]” removed the Union’s

notices without first notifying the Union, Healthbridge, 2014

WL 2194550, at *7, HealthBridge also believes the

Agreements entitle it to unilaterally determine what postings

warrant removal without consulting or even notifying the

Union.10 See Petitioner’s Br. at 41. As Crutchfield

course of deciding an unfair labor practice charge under section

8(a)(1). NLRB v. C & C Plywood Corp., 385 U.S. 421, 429-30

(1967). And although the Board’s decision does discuss the

parties’ expectations about what would constitute a “proper” notice,

see Healthbridge, 2014 WL 2194550, at *1, the Board’s decision

affirmed an ALJ order that focused not on whether HealthBridge

had a right to remove the flyers under the Agreements, but whether

its unilateral interpretation of the Agreements to permit it to remove

flyers it deemed “abusive” or “derogatory” violated employees’

right to communicate about HealthBridge’s treatment of its

workers. This falls squarely under section 8(a)(1). See Cent.

Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972) (“Early in the

history of the administration of the Act the Board recognized the

importance of freedom of communication to the free exercise of

organization rights.”).

10

Even if the Union had been aware of the prior removals,

Crutchfield’s prior orders to administrators to remove other Union

flyers are irrelevant. Roll & Hold Warehouse & Distribution Corp.,

325 N.L.R.B. 41, 51 (1997) (“A union does not waive its statutory

rights . . . by failure to object to past instances of unilateral changes

in employment policy.”), enf’d, 162 F.3d 513, 521 (7th Cir. 1998).

Moreover, even if HealthBridge had removed the notices

pursuant to a neutral policy it consistently implemented, as it

claims, their removal in the midst of a heated renegotiation of the

Agreements reinforces the Board’s concerns about the company’s

motivations. In Loparex, the Seventh Circuit found it sufficient to

uphold the Board’s finding of a violation that management’s new

policy requiring prior approval of bulletin board postings followed

“immediately after a three- or four-month period in which [the

company] witnessed an uptick in employees’ organizing efforts,”

even though there was no direct evidence the company had

24

acknowledged in her testimony, however, HealthBridge did

not reserve any control over the Union bulletin boards in the

Agreements and did not define what constitutes a “proper”

notice. Crutchfield’s belief that certain notices were

inaccurate did not empower her to remove the notices,

because a union’s expression of opinion on a labor dispute

constitutes a “proper” notice. Monongahela Power Co. v.

NLRB, 62 F.3d 1415, 1995 WL 463108, at *8 (4th Cir. 1995)

(unpublished opinion). Having bargained with the Union to

permit it to communicate with members regarding the status

of collective bargaining, HealthBridge was not free to “stifle

any dissemination of information about” the Board’s charges,

even if it considered the Union’s portrayal of the facts wrong.

Monongahela Power Co., 314 N.L.R.B. 65, 68-69 (1994); cf.

Eastex, Inc., 437 U.S. at 573 (“Petitioner’s only cognizable

property right . . . is in preventing employees from bringing

literature onto its property and distributing it there – not in

choosing which distributions protected by § 7 it wishes to

suppress.”). And the mere fact that HealthBridge considered

the notices disruptive or unpleasant is insufficient to warrant

their removal. NLRB v. Container Corp. of Am., 649 F.2d

1213, 1215 (6th Cir. 1981).

HealthBridge claims that, even though the notices were

protected under section 7, it was entitled to remove them

because of what it terms their “abusive and disparaging”

content. Petitioners’ Br. at 45. Union bulletin board notices,

however, are protected even if “abusive” or “insulting.”

Union Carbide Corp., 714 F.2d at 661 (citing Old Dominion

Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418

removed union notices. 591 F.3d at 547; cf. Sutter East Bay

Hosps., 687 F.3d at 433 (upholding the Board’s finding that a

hospital changed solicitation rules in order to “squelch union

activity” when it suddenly began to prohibit outside groups from

meeting in the cafeteria).

25

U.S. 264, 283 (1974)). Only two exceptions apply to this

protection. First, “where the bulletin boards threaten to

become a battleground for competing groups,” the employer

may regulate materials the union posts. Union Carbide Corp.,

714 F.2d at 661 (internal quotation marks omitted). Second,

even “‘the most repulsive speech enjoys immunity provided it

falls short of a deliberate or reckless untruth,’ so long as the

allegedly offensive actions are directly related to activities

protected by the Act and are not so egregious as to be

considered indefensible.” Container Corp. of Am., 244

N.L.R.B. 318, 319 (1979) (quoting NLRB v. Cement Transp.,

Inc., 490 F.2d 1024, 1029-30 (6th Cir. 1974)). The “busted”

notice does not relate to any “battle” among competing

unions, and is not so egregious that it loses the protection of

the Act. In Container Corporation, the Sixth Circuit held that

language comparing a manager to a slave driver who would

be happy paying his “chain gang” retained the protection of

section 7. 649 F.2d at 1214-15. In another case, it upheld a

finding that the company improperly removed a union posting

for criticizing the company’s safety record. United Parcel

Serv., Inc. v. NLRB, 228 F.3d 772, 781 (6th Cir. 2000).

Similarly, telling readers that HealthBridge was “exploiting

the elderly and their caregivers by lying, cheating and even

law-breaking” and wanted “to destroy our jobs, our families

and our neighborhoods,” J.A. 1062-67, was certainly

“unpleasant,” Container Corp., 649 F.2d at 1216, but

nonetheless was protected by the Act. We are left with the

impression that HealthBridge attempted to remove the notices

“simply because it disagree[d] with their contents or [found]

them distasteful.” Monongahela Power Co., 1995 WL

463108, at *9. The Board was within reason in concluding

that the Union’s flyers were a protected union

communication. We therefore uphold the Board’s

determination that HealthBridge’s removal of the “busted”

notices violated section 8(a)(1) of the Act.

26

IV.

For the foregoing reasons, we deny the petition for

review and grant the cross-application for enforcement.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring

in part and dissenting in part: Conspicuously absent from

either the NLRB’s order or the majority opinion is recognition

of a poignant reality: nursing homes provide critical care for

the most vulnerable Americans. They compose our

chronically “sickest” population; “[o]nly a hospital patient

would be considered sicker.” Warner-Maron Trial Test. 541.

Indeed, their residence in a nursing home typically means that

they cannot “live outside an institution” because they “require

. . . care and supervision.” Id. Many suffer from “multiple

illnesses, comorbidities [and] superimposed cognitive

deficits”; accordingly, they depend on caregivers “to bathe,

dress, feed, toilet” and “turn” them. Id. And, of particular

import for this case, “many of them are vulnerable because of

cognitive impairment due to dementia, loss of memory,

Alzheimer’s disease” and “medication effects.” Id. at 543.

The United States Supreme Court has reminded us that the

“patient and his family . . . need a restful, uncluttered,

relaxing, and helpful atmosphere, rather than one remindful of

the tensions of the marketplace in addition to the tensions of

the sick bed.” NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 783

n.12 (1979). The High Court’s admonition, uniquely fitting in

the nursing-home context, ought to animate this case.

Regretfully, it does not. No record evidence, let alone

substantial evidence, supports the Board’s conclusion that

HealthBridge failed to show “a likelihood of . . . disruption or

disturbance” by allowing, in particular, its nursing staff, inter

alia to parade the BUSTED sticker while attending residents.

Brockton Hosp. v. NLRB, 294 F.3d 100, 104 (D.C. Cir. 2002).

Because I cannot join my colleagues’ disposition of this

issue,1 I respectfully dissent.

1

I agree that HealthBridge’s removal of the BUSTED flyer

from union-designated bulletin boards constituted an unfair labor

practice. I also agree with my colleagues that HealthBridge waived

2

I.

The New England Health Care Employees Union,

District 1199, SEIU, AFL-CIO (the Union) distributed the

BUSTED stickers to many HealthBridge employees,

including members of the nursing, maintenance, cafeteria and

housekeeping staffs, at HealthBridge’s six nursing-home

centers, around 7:00 AM on March 25, 2011 and the

employees who donned them did so until about 1:00 PM the

same day. The stickers were removed after Lisa Crutchfield,

HealthBridge’s Senior Vice President of Labor Relations,

ordered them to do so because she feared they would confuse

the “elderly, vulnerable folks” living at the facilities.

Crutchfield Trial Test. 606. Crutchfield, a HealthBridge

employee since November 2005, testified that she works

its challenge to the Board’s presumption of invalidity for selective

insignia bans in immediate-patient-care areas. See Maj. Op. 12–14.

I note, however, that the Board has never provided a good—or

really any—justification for presuming that selective bans on union

insignia in patient-care areas are invalid while presuming that

categorical bans are valid. Given the Supreme Court’s observation

that “[h]ospitals carry on a public function of the utmost

seriousness and importance,” that they “give rise to unique

considerations that do not apply in the industrial settings with

which the Board is more familiar” and, critically, that “[t]he Board

should stand ready to revise its rulings if future experience

demonstrates that the well-being of patients is in fact jeopardized,”

Baptist Hosp., 442 U.S. at 790, one would expect more than the

cursory explanation courts have seen to date. Cf. id. at 791 (Burger,

C.J., concurring in judgment) (“I would think no ‘evidence’ is

needed to establish the proposition that the primary mission of

every hospital is care and concern for the patients and that anything

which tends to interfere with that objective cannot be tolerated. A

religious choir singing in a hospital chapel may well be desirable

but if that interferes with patient care, it cannot be allowed.”).

3

“very closely” with HealthBridge’s nursing-home centers and

is in them “very often,” “walk[ing] the floors” and meeting

with employees, managers and administrators. Id. at 602–03.

Based on this concern—and based on her years of

employment in the healthcare industry, including at least ten

years at HealthBridge—Crutchfield reasoned that:

the sticker itself says busted with a judge’s gavel.

And it’s saying that the center was busted. It

suggests some kind of crime. I was concerned that

residents . . . would not understand this was related

to a labor matter and might be concerned for a larger

issue. What is happening here at this center? Has

this center been convicted of a crime? Is that

impacting the care that I’m receiving? So my

concern was that residents may be upset by this, may

not understand it and it may create confusion and

disruption for them.

Id. at 605–06. There is no dispute that Crutchfield’s

prohibition applied only in areas where residents frequented;

per her instructions, employees were free to wear the stickers

elsewhere.2 The Board did not counter Crutchfield’s

testimony that her primary focus is “to protect those residents

and to care for those residents.” Id. at 605.

HealthBridge supplemented Crutchfield’s testimony with

that of Ilene Warner-Maron, a registered gerontological nurse

who has worked with the elderly since 1975. Warner-Maron

2

Two of the six HealthBridge centers apparently banned the

BUSTED sticker in all areas, despite Crutchfield’s instruction that

displaying the sticker was permissible in non-patient-care areas. I

agree with my colleagues that HealthBridge failed to argue in

support of the two centers’ total ban. See Maj. Op. 21 n.8.

4

is an adjunct college professor at Saint Joseph’s University in

Philadelphia, teaches nursing licensure classes on gerontology

and has administered nursing facilities. She has three masters

degrees—one in social gerontology, one in health

administration and one in law and social policy—and a

doctorate degree in health policy. At the time of her

testimony, Warner-Maron had been admitted as an expert in

fifty-six cases in more than ten states regarding standards of

care in the healthcare industry and she had reviewed

approximately 2,940 cases in toto. She was qualified as an

expert witness in this case without objection.

During her testimony, Warner-Maron first emphasized

the obvious—that nursing homes care for “vulnerable adults

who have physical and/or cognitive impairment [and] who are

dependent on the facility staff to render care, sometimes very

personal, intimate care; bathing, grooming, toileting, diapers,

those types of things.” Warner-Maron Trial Test. 538. She

was “concerned looking at the busted sticker, because of the

inference of the word busted.” Id. Specifically, she testified

that “[b]usted does not have a positive connotation. It’s

strictly negative. It infers something is broken. It could also

infer bankruptcy. It can infer arrest. There’s no positive way

to interpret the word busted.” Id. (emphasis added). In her

expert opinion, a sticker:

with the red word busted as the principle [sic] focus

. . . being wor[n] on the uniform of employees at

chest level, . . . the nursing home resident would see

that sticker, see that word busted and could easily

become agitated, upset, worried, concerned about the

inference of that word busted being [used] by their

caregiver.

5

Id. at 538–39. Warner-Maron was not only concerned that the

BUSTED sticker could cause harm to the residents; she was

also concerned that it could instigate harm by the residents,

testifying that the residents might “become upset by this

sticker and become agitated and even combative towards the

caregivers . . . because of the implications of the wording on

the sticker.” Id. at 548; see also id. (“[Y]ou don’t want your

residents agitated and striking out at the very caregivers that

are providing care.”).

According to Warner-Maron, because each BUSTED

sticker identified a HealthBridge facility, the residents would

infer that the care centers “violated some law,” which

violation “could potentially cause that resident to have to be

moved.” Id. at 539. The consequences of such an inference

can be dire. During her multi-decade career, Warner-Maron

personally observed “transfer trauma,” which occurs when

“someone who’s used to being in a facility” is “evacuated to

another facility” and experiences “difficulty adjusting.” Id. at

547. Transfer trauma causes, in turn, “an increase in the risk

of death, . . . depression and psychiatric harm” among

nursing-home residents. Id. She emphasized that the fear is

“very problematic for people” who know “they can’t return to

an independent life in the community” and who are thus

“dependent upon a facility to maintain their safety and care.”

Id. Based on her experience, transfer trauma can occur when

a resident is faced with the mere “threat of a facility being

closed.” Id. (emphasis added).

The Board did not rebut any of the aforementioned

testimony. HealthBridge had the burden to demonstrate “only

a likelihood of, not actual, disruption or disturbance” to

justify barring its employees from wearing the BUSTED

sticker in patient-care areas. Brockton Hosp., 294 F.3d at

104; see also Baptist Hosp., 442 U.S. at 781 n.11 (“a hospital

6

may overcome the presumption by showing that solicitation is

likely either to disrupt patient care or disturb patients”

(emphasis added)). The Board has long recognized that a

healthcare facility is under no obligation to “wait for the

awful moment when patients or family are disturbed by a

button before it may lawfully be restricted.” Sacred Heart

Med. Ctr., 347 N.L.R.B. 531, 533 (2006), vacated on other

grounds by Wash. State Nurses Ass’n v. NLRB, 526 F.3d 577

(9th Cir. 2008). In my view, HealthBridge’s submission—the

uncontroverted testimony of two healthcare professionals

explaining why the particulars of the BUSTED sticker were

likely to upset HealthBridge residents to the point of an

“increase in the risk of death, . . . depression and psychiatric

harm”—plainly satisfied this burden. Warner-Maron Trial

Test. 547. Short of allowing the BUSTED stickers to in fact

harm a resident, I cannot think what HealthBridge could have

done other than ban the stickers in patient-care areas. See

also Baylor Univ. Med. Ctr. v. NLRB, 662 F.2d 56, 62 (D.C.

Cir. 1981).

II.

Notwithstanding the uncontroverted testimony, the Board

found that HealthBridge failed to establish the BUSTED

sticker would likely disturb or disrupt its residents.

HealthBridge Mgmt., LLC, 360 N.L.R.B. No. 118 (May 22,

2014). In so doing, it concluded that (A) Crutchfield’s

testimony was based on her mere speculative belief and

conjecture; (B) HealthBridge’s purported concern for its

residents was belied by letters it sent informing them of a

labor dispute; and (C) Warner-Maron provided only

speculative, after-the-fact testimony about the sticker’s likely

effect on residents. See id. The majority agrees, relying (at

least in part) on our standard of review. Granted, substantial-

evidence review is “limited” and “deferential.” Maj. Op. 15.

7

But it has never been “so deferential that the court will merely

act as a rubber stamp for the Board’s conclusions.” Titanium

Metals Corp. v. NLRB, 392 F.3d 439, 445 (D.C. Cir. 2004).

Indeed, “[w]hen the Board’s findings lack . . . support in the

record, the reviewing courts must set them aside, along with

the orders of the Board that rest on those findings.” Baptist

Hosp., 442 U.S. at 782. Properly understood, “the substantial

evidence test requires a case-by-case analysis and a review of

the whole record” and it “requires a reviewing court to take

into account whatever in the record fairly detracts from the

Board’s conclusions.” Wash. State Nurses Ass’n, 526 F.3d at

580 (quotation marks omitted). At bottom, “[w]e review the

Board’s application of the law to the facts for

reasonableness.” S. New England Tel. Co. v. NLRB, No. 11-

1099, 2015 WL 4153873, at *2 (D.C. Cir. July 10, 2015).

The majority’s analysis, which largely tracks that of the

Board, allows the Board to apply “the ‘special circumstances’

exception in an unreasonable way.” Id. at *3. By repeating

many of the same factual, legal and analytical errors (while

adding a few of its own), my colleagues endorse the Board’s

placing of “an unreasonably high and unrealistic burden” on

all healthcare facilities, one that would require them to wait

and see whether union activity in fact harms its residents

before prohibiting the same in patient-care areas.

HealthBridge Mgmt., LLC, 360 N.L.R.B. No. 118

(Miscimarra, concurring in part and dissenting in part). I

agree with the dissenting Board member that the Board’s

decision defies “experience, intuitive reasoning and common

sense.” Id.; see also S. New England Tel. Co., 2015 WL

4153873, at *1 (“Common sense sometimes matters in

resolving legal disputes.”). And on further examination, the

reasons on which my colleagues rely collapse under their own

weight.

8

A.

My colleagues discredit Crutchfield’s belief that

“residents who saw the stickers would not understand this was

related to a labor matter and might fear the Centers had been

convicted of a crime,” observing that the stickers state that

HealthBridge had been busted by the “National Labor Board

For Violating Federal Labor Law.” Maj. Op. 15–16

(emphases in original) (quotation marks omitted). I believe

their skepticism is unfounded. The record is replete with

evidence documenting the extraordinary difficulties that

nursing-home residents face, “both on the physical and on the

cognitive aspect.” Warner-Maron Trial Test. 542; see also,

e.g., id. at 538–40, 547; Crutchfield Trial Test. 602–06. In

my view, it is wholly unreasonable to presume that elderly

residents who depend on staff “to bathe, dress, feed, toilet”

and “turn” them can appreciate the difference between a

violation of the National Labor Relations Act and a violation

of any other law. Warner-Maron Trial Test. 541. Simply

because my colleagues understand that “[a]n employer’s

violation of labor law is quite different from a criminal

conviction” does not mean that elderly, ill residents—

assuming they are physically able to read—can appreciate the

difference. Maj. Op. 16.

Even if we assume that HealthBridge’s residents have a

nuanced understanding of federal law, the majority mistakes

the gravamen of Crutchfield’s concern. She did not fear that

HealthBridge’s residents would misunderstand the substance

of an alleged legal violation (i.e., criminal law, labor law or

something else), or even the victim thereof (i.e., a resident, an

employee or someone else). Rather, she was plainly

concerned that the BUSTED stickers would cause fear about

the consequences of an alleged legal violation—i.e., whether

a resident would wonder if HealthBridge’s being “BUSTED”

9

would “impact[] the care that I’m receiving?” Crutchfield

Trial Test. 606. This concern is the same from a resident’s

perspective whether HealthBridge was convicted of a crime,

in bankruptcy proceedings or even liable for a labor-law

violation. And the unrebutted testimony from Warner-Maron

indicates that Crutchfield’s concerns were well-founded: “Q.

. . . So as a patient I would be concerned I’m going to lose

care, correct? A. Lose care, lose safety, lose . . . the security

of that facility. Yes.” Warner-Maron Trial Test. 558.

B.

My colleagues also find that the Board reasonably

concluded it was “irrational” for HealthBridge “to assume that

residents would become distraught and traumatized by a two-

and-a-half inch, ten-word sticker” but “would be reassured by

[its] repeated and detailed letters . . . threatening an imminent

Union strike.” Maj. Op. 16. Their conclusion, I fear, both

discounts the impact of the BUSTED stickers and exaggerates

HealthBridge’s letters and, in so doing, mistakenly equates

the two. At bottom, “[t]here’s no positive way to interpret”

the BUSTED stickers, Warner-Maron Trial Test. 538, while

HealthBridge’s letters were intended to reassure its residents.

Undoubtedly, HealthBridge’s correspondence could have

adopted a more neutral tone regarding the labor dispute. But

neither the tone of HealthBridge’s words nor my colleagues’

characterization of the letters as “drafted exceptionally

poorly,” Maj. Op. 16, detracts from the underlying message

HealthBridge wanted its residents and their families to hear,

especially in the two letters it sent before the BUSTED sticker

appeared:

First Letter:

 “As you may know, [HealthBridge] has been in

negotiations with [the Union] . . . . We have

10

approached these negotiations with an open

mind and a sincere desire to reach an agreement

with the Union that will enable us to continue

providing the highest quality care and services

to you and your fellow residents.”

 “We need to negotiate a contract that reflects the

new reality of our industry to ensure that you

continue to receive the best possible care.”

 “Let me assure you that our labor negotiators

are doing everything possible to avert the

possibility of a strike . . . . Since this Union has

a long history of calling strikes, however, we

take this matter very seriously and are well

prepared in the event the Union moves forward

with plans for a strike . . . .”

 “We are working with the Department of Public

Health and have developed a comprehensive

contingency plan to ensure that you continue to

receive excellent clinical care and services

without interruption in the event of any strike,

work stoppage or other labor dispute. We have

mobilized our regional operational and clinical

teams and are ready with a full complement of

replacement staff to manage and run our Center.

All food and medical supplies will be available

to meet each resident’s individual clinical and

nutritional needs. We also have retained a

special security team to ensure that you and

your family are comfortable and secure.”

11

 “[I]f the Union should call a strike, our Center’s

operations will continue as usual—including

admitting new residents.”

1st Ltr. from Administrators to HealthBridge Resident and

Family Member 1 (March 2011) (emphases added).

Second Letter:

 “We need to negotiate a new agreement that

reflects the reality of our industry today so we

can continue providing the highest quality care

to you and your fellow residents.”

 “Thus far, we have not received a strike notice

from the Union . . . . Please be assured that we

do not want a strike at our Center and our

negotiations team is doing everything possible to

avert the possibility of a strike.”

 “[I]f the Union should call a strike as they

threatened to do in the very first negotiations

meeting, we want you to know that we are fully

prepared to continue all of our Center’s normal

operations.”

 “As we anticipated, due to the current economic

climate, we have had a tremendous response to

our recruitment of replacement staff in the event

we need them. You can feel confident that, if

any kind of strike, work stoppage or other labor

dispute should occur, we will have a full

complement of highly-qualified [sic]

replacement staff to run our Center.”

12

2d Ltr. from Administrators to HealthBridge Resident and

Family Member 1 (March 2011) (emphases added) (underline

in original). Simply put, HealthBridge informed its

residents—truthfully—that the Union had threatened to strike

but that HealthBridge was nonetheless “fully prepared to

continue all . . . normal operations.” 2d Ltr. at 1. Contrast

this positive message with the image that greeted the “elderly,

vulnerable folks” living at HealthBridge’s facilities,

Crutchfield Trial Test. 605, on the morning of March 25,

2011:

Given the emotional and psychological damage nursing-

home residents risk if they perceive the “threat of a facility

being closed,” Warner-Maron Trial Test. 547, HealthBridge’s

commitment to “ensure that [its residents] continue to receive

excellent clinical care and services without interruption in the

event of any strike, work stoppage or other labor dispute,” 1st

Ltr. at 1, is consistent with common sense and with

13

HealthBridge’s caring concern for them.3 That the letters

placed HealthBridge’s negotiating position in a favorable

3

The majority notes that “HealthBridge’s own expert

conceded on cross-examination that communications to residents

that imply that they might lose the care of . . . their direct care

provider could constitute emotional abuse.” Maj. Op. 16–17

(ellipses in original) (quotation marks omitted). Read in context,

however, her testimony did not suggest an equivalency between

HealthBridge’s letters and the BUSTED sticker:

Q. So if I told a patient hey, tomorrow none of the

[caregivers] that you . . . know, are familiar with, are

going to be here and there’s going to be brand new

people taking care of you—

A. It would be upsetting. I don’t know if that would

rise to the level of emotional abuse, but depending

on that individual, if that individual had a

relationship with particular aides and the loss of that

aide or those aides would cause them to become

emotionally in despair, then for that individual it

may be a form of abuse, yes.

Q. I mean it would be emotionally abusive, don’t you

think, if I went to bed one night with my [caregiver],

and the next morning I woke up, and she wasn’t

there and some stranger was there?

A. Well, that’s the nature of working in institutions.

You don’t always have the same people taking care

of you. But . . . people move in and out of the

industry frequently. We try to minimize turnover

whenever we can, but we don’t want to force the

turnover of people. We don’t want to cause people

to feel that the people that they’ve associated with

for periods of time are going to be lost to them for

some purposeful reason.

Warner-Maron Trial Test. 560. In other words, Warner-Maron

acknowledged that some nursing-home residents experience

14

light does not mean that treating them differently from the

BUSTED sticker would “sanction a blatant double standard in

favor of employers.” Maj. Op. 17. Far from it. Even the best

intentions—and there is no indication that HealthBridge had

anything but good intentions—are not always expressed with

superior draftsmanship.

Moreover, the majority sweeps past the wholly

unrebutted expert testimony (which makes the self-evident

point) that there is plainly a difference between the BUSTED

sticker and a letter addressed to a resident. See Warner-

Maron Trial Test. 562. The sticker is “very visible.” Id. This

“visible threat on the clothing of the aide,” which is “in close

proximity to the resident,” is necessarily not removed as is

“opening . . . and reading a letter.” Id. Further, any potential

harm caused by the letters’ content was blunted because

“often the letter goes to the family member rather than to the

resident, or if it’s brought to the resident it’s brought by the

social worker who’s helping that resident read the letter and

not just delivering the letter and walking away.” Id.

In my view, the unrebutted record evidence compels the

conclusion that HealthBridge, in sending its letters and in

ordering the removal of the BUSTED sticker, acted out of

concern for its residents and “likel[y]” avoided an “actual[]

disruption or disturbance” at its nursing-care facilities.

Brockton Hosp., 294 F.3d at 104; see also Baptist Hosp., 442

distress because their caregivers are at times temporary but that it is

impossible to avoid this type of stress in all instances. Warner-

Maron’s testimony on this point contrasts sharply with her opinion

that “the wording of [the BUSTED sticker], and the type and the

red writing of it, with the gavel underneath, is easily viewed as an

implied threat that something is amiss, that something is wrong,

that there’s something threatening.” Id. at 559.

15

U.S. at 781 n.11. It should be lauded—not rebuked—for its

efforts.

C.

Finally—and perhaps most remarkably—my colleagues

assert that HealthBridge “failed to adduce evidence showing

the stickers were objectively disturbing.” Maj. Op. 17.4 As

discussed, both Crutchfield and Warner-Maron provided

extensive testimony regarding the damage the BUSTED

sticker would have caused HealthBridge’s residents. The

majority’s criticism of their testimony does not withstand

scrutiny.

The majority, like the Board, faults Crutchfield for not

basing her testimony on “actual interactions with or

comments from residents, family members, or employees.”

4

My colleagues contrast the evidence here with that in Baptist

Hospital, a Supreme Court case in which hospital employees

testified that “anytime we do anything that lets a patient or [his]

family see that we have our mind on anything but patient care, this

is very disruptive to the patient and sometimes affects the patient’s

ability to recover.” 442 U.S. at 783 (emphasis added). But there is

no daylight between Baptist Hospital and HealthBridge in this

regard. The Baptist Hospital employees’ testimony applies fully to

the residents of the HealthBridge facilities. I fail to see how

requiring Warner-Maron to question HealthBridge residents to

gauge the severity of their impairments would be constructive. Cf.

Maj. Op. 19. Rather, the testimony the Supreme Court highlighted

in Baptist Hospital underscores that all patients and all families,

including those at HealthBridge facilities, “need a restful,

uncluttered, relaxing, and helpful atmosphere, rather than one

remindful of the tensions of the marketplace in addition to the

tensions of the sick bed.” 442 U.S. at 783 n.12.

16

Maj. Op. 18.5 It rejects HealthBridge’s argument that such

evidence would require it to demonstrate “actual harm or a

disturbance to patients.” Maj. Op. 19 (quotation mark

omitted). But my colleagues make no attempt to explain the

difference between “actual harm or a disturbance” (which,

they admit, cannot be required) and “specific experience with

a patient, family member, or employee” or “specific evidence

of harm or likelihood of harm to patients from employees

wearing the sticker” (which, in their view, is required). Id. In

my view, HealthBridge did all it could short of waiting “for

the awful moment when patients or family are disturbed by a

button” before acting to prevent potentially serious injury to,

or distress, its residents. Sacred Heart Med. Ctr., 347

5

The majority also criticizes Crutchfield as merely “an

attorney who testified that her duties are to oversee the

development of labor relations strategy, human resources, and

implementation of collective bargaining agreements.” Maj. Op. 18

(quotation marks omitted). I note that the Supreme Court, in

Baptist Hospital, relied not only on medical witnesses but also on

the “Hospital’s Vice President for Personnel Services,” who

testified that the rule limiting union activity in that case “was

adopted because of concern about the ill effects of union

organizational activity on patients” and that “[t]he general purpose

of the rule . . . [wa]s to protect the patients and their families from

the disquiet that might result if they perceived that the Hospital’s

staff had concerns other than the care of patients.” 442 U.S. at

782–83. At a minimum, the High Court’s reliance on a non-

medical witness suggests that the testimony of a ten-year

HealthBridge employee who works “very closely with the centers”

and is “in the centers very often,” “walk[ing] the floors” and

“spend[ing] time meeting” with employees, managers and

administrators should not be so easily cast aside. Crutchfield Trial

Test. 602–03.

17

N.L.R.B. at 533.6 The majority’s position may force hospitals

and healthcare facilities to inch closer and closer to actual

6

My colleagues fault Crutchfield for failing to “differentiate

the ‘busted’ stickers from other insignia HealthBridge had

permitted in the past.” Maj. Op. 18. They ignore Warner-Maron’s

testimony on that precise issue:

Q. . . . did you have the same expert opinion regarding

any of the other buttons or stickers that you

reviewed?

A. No, I had no trouble with any of those other[]

stickers.

Q. And why is that?

A. The other stickers don’t have that wording. They

don’t have that connotation. They don’t threaten.

Even the exhibit 9 with the Grinch, the intent is to of

course bring attention to the Union, but it’s not

threatening. It’s a picture of a cartoon character. So

I didn’t find anything in the other stickers in any way

to be threatening, to exhibit any kind of potential for

emotional abuse on the part of a resident, none of

these, just the one that says busted in red with the

gavel and the words underneath it inferring that the

nursing home has violated a law.

Q. And what about General Counsel’s exhibit 4, the one

that says fight in it, does that make any difference?

A. I think the way that the fight is, it’s couched between

a vision, a fight and union, and I did not take away

. . . the inference that this sticker meant that the aide

should fight or that there’s an ongoing fight going

on. So I think the way that the word fight is

positioned between vision and union does not have

anywhere near the same effect as the sticker that

we’re talking about with the word busted.

18

harm to generate evidence “specific” enough to defend

against an unfair-labor-practice charge. Maj. Op. 19.

The majority’s rejection of Warner-Maron’s testimony

fares no better. Like the Board, my colleagues demand that

Warner-Maron’s opinion be “informed by actual information

about or experience with the facilities, their staff, or their

patients or by speaking to patients, family members or care

givers.” Maj. Op. 19 (quotation marks omitted). Their

demand misconstrues elementary principles of expert

testimony.7 “Unlike an ordinary witness, an expert is

permitted wide latitude to offer opinions, including those that

are not based on firsthand knowledge or observation.”

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592

(1993) (emphasis added) (citation omitted); see also United

States v. Mejia, 597 F.3d 1329, 1339 (D.C. Cir. 2010) (same);

Peteet v. Dow Chem. Co., 868 F.2d 1428, 1432 (5th Cir.

1989) (“A personal examination of the person or object of the

expert’s testimony is not required”); Sementilli v. Trinidad

Corp., 155 F.3d 1130, 1134 (9th Cir. 1998); Sweet v. United

States, 687 F.2d 246, 249 (8th Cir. 1982); DAVID H. KAYE ET

AL., THE NEW WIGMORE: A TREATISE ON EVIDENCE, § 4.2

(expert witnesses “are exempted from the traditional personal-

Warner-Maron Trial Test. 540–41. As with much of

HealthBridge’s evidence, the Board made no attempt to rebut it,

instead ignoring or dismissing it. Our responsibility, however, is to

“take into account whatever in the record fairly detracts from the

Board’s conclusions.” Wash. State Nurses Ass’n, 526 F.3d at 580

(quotation marks omitted).

7

The Board, per regulation, generally applies the Federal

Rules of Evidence. See 29 C.F.R. § 102.39 (“Any . . . proceeding

shall, so far as practicable, be conducted in accordance with the

rules of evidence applicable in the district courts of the United

States . . . .”).

19

knowledge requirements, and may therefore give opinions

without personal knowledge of the underlying facts”); 3 D.

LOUISELL & C. MUELLER, FEDERAL EVIDENCE § 389, at 657

(1979) (FED. R. EVID. 703 “diminishes the need for the expert

to have firsthand knowledge concerning the matters in

issue”).

Indeed, “firsthand observations” constitute but one of

“three categories of materials” that “may form the basis for

expert judgments.” DAVID H. KAYE ET AL., THE NEW

WIGMORE: A TREATISE ON EVIDENCE, § 4.1. The other two

include reviewing materials presented at trial and materials

furnished outside court. FED. R. EVID. 703 advisory

committee’s note (1972). Warner-Maron viewed the

BUSTED sticker before trial and again while testifying,

considered the indisputably negative word BUSTED and the

other inflammatory imagery on the sticker,8 applied her

expertise and opined that the BUSTED sticker was likely to

distress HealthBridge’s residents. Her testimony, then, fits

comfortably within the accepted scope of expert opinion.

Rather than correcting the Board’s incorrect application of

evidentiary rules, my colleagues endorse it. See Maj. Op. 20

(Warner-Maron’s “speculation, untethered as it was from any

patient or staff interviews or visits to the Centers, was of little

use in determining why these stickers, in contrast to the

insignia nurses have worn in the past, merited prohibition”).9

8

Both the Board and the majority criticize Warner-Maron

because she searched Google for the word “busted.” See Maj. Op.

20 & n.7 (quoting Pet’r’s Reply Br. 10 n.2). Neither, however,

suggests that there is any “positive way to interpret the word

busted.” Warner-Maron Trial Test. 538.

9

The majority suggests that my point about Warner-Maron’s

expert testimony “is misplaced,” noting that the Board “was entitled

to determine the weight it would accord Warner-Maron’s

20

The inescapable implication of the majority’s conclusion

is this: because HealthBridge allowed its employees to display

other union insignia in patient-care areas in the past, it had to

identify a resident (or a family member) who had seen the

BUSTED sticker (or perhaps similarly inflammatory union

insignia) and reacted adversely to it in order to prohibit its

employees from wearing the BUSTED sticker. The Supreme

Court,10 this Court11 and the Board12 have made plain that this

is not the law.

evidence.” Maj. Op. 20 (emphasis in original). But

notwithstanding the “weighing of expert opinions is the province of

the ALJ, there must be some indication in the ALJ’s decision that

the weighing was conducted in a reasoned manner.” Peabody Coal

Co. v. Dir., Office of Workers’ Comp. Programs, 972 F.2d 178, 182

(7th Cir. 1992). Indeed, “it makes little sense to use scientific

standards in performing the gatekeeping function [at the

admissibility stage] and then permit the dispute on the merits to be

resolved by arbitrary considerations.” Peabody Coal Co. v.

McCandless, 255 F.3d 465, 469 (7th Cir. 2001). In my view,

discounting out-of-hand expert testimony because it was not based

on first-hand observations is arbitrary, especially in the absence of

contrary testimony. For this reason, my colleagues’ plea for

deference rings hollow. See also Oppenheim v. Finch, 495 F.2d

396, 398 (4th Cir. 1974) (vacating and remanding because, inter

alia, “[t]h[e] expert judgment is neither met nor contradicted by any

other expert judgment”). The ipse dixit label the majority attempts

to fix on Warner-Maron’s testimony, see Maj. Op. 20, is a much

closer fit on the Board—the decision-maker whose only reasoning

is “because we say so.”

10

Baptist Hosp., 442 U.S. at 781 n.11 (“[A] hospital may

overcome the presumption by showing that solicitation is likely

either to disrupt patient care or disturb patients.” (first emphasis

added)).

11

Brockton Hosp., 294 F.3d at 104 (“[T]he Hospital had to

show only a likelihood of, not actual, disruption or disturbance.”).

21

III.

I end where I began. The Supreme Court has commented

that “the patient and his family . . . need a restful, uncluttered,

relaxing, and helpful atmosphere, rather than one remindful of

the tensions of the marketplace in addition to the tensions of

the sick bed.” Baptist Hosp., 442 U.S. at 783 n.12. Then–

Chief Justice Burger, writing separately in Baptist Hospital,

believed that “no ‘evidence’ is needed to establish the

proposition that the primary mission of every hospital is care

and concern for the patients and that anything which tends to

interfere with that objective cannot be tolerated.” Id. at 791

(Burger, C.J., concurring in judgment) (emphasis added).

And more than three decades after Baptist Hospital, Warner-

Maron, in explaining the nature of the caregiver/nursing-home

resident relationship, underscored why care and concern for

residents must take priority:

[B]ecause of the intimate nature of the interaction

between the caregiver and the resident, the caregiver

has to be able to have a rapport with that resident.

That resident has to be able to trust, in their most

naked form, because they are in their most naked

form, during most of this care, that the caregiver will

provide safe, competent care to them. So it’s a very

personal relationship between the [caregiver] and the

resident.

Warner-Maron Trial. Test. 544.

12

Sacred Heart Med. Ctr., 347 N.L.R.B. at 533 (“[A] hospital

need not wait for the awful moment when patients or family are

disturbed by a button before it may lawfully be restricted.”).

22

The Union’s BUSTED sticker display interfered with this

intimate and personal relationship in a callous and dangerous

manner. HealthBridge acted reasonably, legally and

compassionately to prohibit its employees from wearing the

BUSTED sticker in patient-care areas. In my view, it met its

burden before the Board as well as its burden—before us—of

establishing that the Board’s contrary conclusion fails the

substantial-evidence test. Accordingly, I respectfully dissent.