Care One at Madison Avenue, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2016 Decided August 12, 2016

No. 15-1010

CARE ONE AT MADISON AVENUE, LLC, DOING BUSINESS AS

CARE ONE AT MADISON AVENUE,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

1199 SEIU UNITED HEALTHCARE WORKERS EAST,

INTERVENOR

Consolidated with 15-1025

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

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

on the briefs were Paul D. Clement, C. Harker Rhodes, IV,

and Andrew N. Ferguson.

Milakshmi V. Rajapakse, Attorney, National Labor

Relations Board, argued the cause for respondent. With her

on the brief were Richard F. Griffin, Jr., General Counsel,

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Jennifer Abruzzo, Deputy General Counsel, John H.

Ferguson, Associate General Counsel, Linda Dreeben,

Deputy Associate General Counsel, Robert J. Englehart,

Supervisory Attorney, and Douglas Callahan, Attorney.

Katherine H. Hansen argued the cause for intervenor.

With her on the brief was William S. Massey.

Before: ROGERS, PILLARD and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: The National Labor Relations

Board (the Board) determined that petitioner Care One at

Madison Avenue (Care One or the Company) committed a

series of unfair labor practices in an effort to prevent the

certification of a union at its nursing home and rehabilitation

facility in Morristown, New Jersey. After the union lost a

representation election in March 2012, it filed objections and

charges of unfair labor practices with the Board. The Board

held that Care One had interfered with employees’ protected

activity and discriminated against union-eligible employees in

violation of the National Labor Relations Act (the Act) by

instituting a system-wide, discretionary benefits increase

shortly before a scheduled representation election and

denying the increase to the union-eligible employees. The

Board also concluded that the company unlawfully interfered

with its employees’ right to organize by distributing to

employees eligible to vote in the upcoming election a

threatening leaflet associating unionization with job loss;

presenting a slideshow depicting employees, without their

consent, as if they supported the Company’s antiunion

campaign; and issuing a post-election memorandum

reiterating the company’s workplace violence policy, which

the Board concluded could reasonably be read in context to

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threaten reprisal for protected union activity. Care One at

Madison Ave., LLC d/b/a Care One at Madison Ave. & 1199

SEIU, United Healthcare Workers E., 361 N.L.R.B. No. 159,

2014 WL 7339612 (Dec. 16, 2014).

We deny Care One’s petition for review and grant the

Board’s cross-application for enforcement of its order on each

of the charges.

I. Background

The Company’s Morristown, New Jersey, nursing home,

Care One at Madison Avenue, is part of a network of

approximately twenty nursing and rehabilitation facilities that

Care One Management runs across the state. Employees at

those facilities share a common health insurance plan.

Effective January 1, 2012, Care One Management modified

its company-wide plan, reducing benefits and increasing costs

for its employees.

As Care One Management was eliminating benefits,

employees at the Madison Avenue facility were organizing.

On January 23, 2012, 1199 SEIU United Healthcare Workers

East (the Union) filed a petition for an election to represent

full-time and regular part-time non-professional employees at

that location.

Meanwhile, Care One decided it would reverse cuts it

had made to its health insurance plan, thereby restoring many

benefits to their pre-2012 levels. The Company announced

the restoration of benefits in a March 5, 2012, memorandum,

just three weeks shy of the scheduled representation election,

with the restoration to become effective the day of the

election. Care One withheld the March 5 memorandum only

from union-eligible employees without any explanation, and

did not tell the excluded employees when or whether their

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benefits would be restored. Care One facilities administrator

George Arezzo, however, posted the memorandum at the

Madison Avenue facility where union-eligible employees

could—and did—see it. When the excluded employees asked

Arezzo about the benefits, he refused to discuss the matter

with them. The sole reason the Company offers for its

targeted exclusion of the union-eligible employees is “the

pendency of the representation election.” J.A. 93, 187.

In the months leading up to the election, Care One

campaigned against the Union. The Company distributed

leaflets to the Union-eligible employees, which told them to

“Get the Facts!” J.A. 98. One of those leaflets directed

employees to “think about what you need to do when you

vote” and listed a series of questions for employees to

consider, including, “Do you want to give outsiders the power

to jeopardize your job by putting you out on strike?” Id.

(emphasis in original). The answer, the company emphasized

in bold, oversized type, was “NO.” Id.

On March 21, two days before the election, the Company

held a mandatory meeting for all union-eligible employees.

At the meeting, Arezzo made the Company’s final argument

against the Union. He told the employees that Care One was

a “family” that would work better together without a union.

J.A. 41. At the end of the meeting, Arezzo showed the

employees a slideshow that reiterated the “we are family”

theme. The slideshow included images of many of the union-

eligible employees. Care One management had represented

when it took the employees’ photographs that they were for a

Valentine’s Day activity, a patient-care program, and a

display case in the common space of the facility.

Management never sought or received consent from

employees to use their photographs in the antiunion campaign

slideshow, nor did it make any disclaimer that the

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presentation did not necessarily reflect the views of the

employees depicted. In the slideshow, the images of

employees were set against a recording of Sister Sledge

singing “We are Family.” When the slideshow concluded,

Arezzo reportedly said to the employees, “Please vote no,

give management a chance, we’re a family, we’re a team.”

J.A. 55.

When the Union held the election two days later, fifty-

seven employees voted for union representation and fifty-

eight voted against.

On March 26, three days after the election, Arezzo posted

a memorandum entitled “Teamwork and Dignity and

Respect” on the employee bulletin board. Arezzo’s

memorandum addressed the Madison Avenue facility’s

employees: “Now that the NLRB Election is behind us,” he

wrote, “I was hoping that everyone would put their

differences behind them and pull together as a team.” J.A.

124. Arezzo asserted in the memorandum that he had heard

that “a few employees are not treating their fellow team

members with respect and dignity” and noted “disturbing

reports that some of our team members have been

threatened.” Id. He went on to say that “employees have a

right to make up their own minds regarding the union” and

that he “respect[ed] the right employees have to be for or

against the union,” id., but cautioned that those rights “do not

give anyone the right to threaten or intimidate another team

member, for any reason,” id. Arezzo attached to the

memorandum Care One’s pre-existing Workplace Violence

Prevention policy. There was in fact no evidence of any

threats or intimidation, or even reports thereof, leaving

employees to wonder what communications or activities

surrounding the union representation election the management

thought the referenced disciplinary policy encompassed.

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The Union filed several objections to the unsuccessful

election. The Board upheld most of those objections and

ordered a new election. Care One at Madison Avenue, Case

22-RC-072946, 2012 WL 4049006 (N.L.R.B. Sept. 13, 2012).

The Union also filed several unfair labor practice charges

against Care One, prompting the Board’s Acting General

Counsel to bring the charges at issue in this case. The second

representation election awaits the resolution of these unfair

labor practice charges.

The parties waived an in-person hearing and instead

submitted a stipulated record. Based on that record, an ALJ

found that Care One’s challenged antiunion conduct before

and immediately following the representation election

violated sections 8(a)(1) and 8(a)(3) of the Act. 29 U.S.C.

§ 158(a)(1) & (a)(3). In a December 16, 2014, Decision and

Order, the Board upheld the ALJ’s findings and conclusions,

with the exception that Member Johnson dissented from the

Board’s holding that the post-election memorandum could

reasonably be read as unlawfully threatening protected

activity.

Care One petitioned this court for review of the Board’s

order, the Board cross-applied for enforcement, and the Union

intervened in support of the Board. We have jurisdiction over

the petition and application under sections 10(e) and 10(f) of

the Act. 29 U.S.C. §§ 160(e), (f).

II. Analysis

When workers begin to organize, their employer may

take many steps to convince them not to form a union. But no

employer has completely free rein. The National Labor

Relations Act, interpreted in decades of precedent of the

Board and the courts, strikes a balance between the

prerogatives of employers and the rights of employees.

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Because “the NLRB has the primary responsibility for

developing and applying national labor policy,” NLRB v.

Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990), we will

“uphold the Board’s legal determinations so long as they are

neither arbitrary nor inconsistent with established law,”

Tualatin Elec., Inc. v. NLRB, 253 F.3d 714, 717 (D.C. Cir.

2001). On questions of fact, the Board’s findings are

“conclusive” if “supported by substantial evidence on the

record considered as a whole.” 29 U.S.C. § 160(e); see

Universal Camera Corp. v. NLRB, 340 U.S. 474, 490 (1951).

Applying those standards, we grant the Board’s

application for enforcement of its order.

a. Pre-election Benefit Grant to All Except Union-Eligible

Employees

An employer must refrain from interfering with or

discouraging the exercise of protected labor rights by either

granting or withholding a benefit. Whether interference is

accomplished by dangling a carrot or brandishing a stick, the

Supreme Court has long counseled that it is interference all

the same. See NLRB v. Great Dane Trailers, Inc., 388 U.S.

26, 32 (1967); NLRB v. Exchange Parts Co., 375 U.S. 405,

409-10 (1964). What the Act requires is that the employer

make its benefits decisions “precisely as it would if the union

were not on the scene.” Federated Logistics & Operations v.

NLRB, 400 F.3d 920, 927 (D.C. Cir. 2005) (quoting Perdue

Farms, Inc. Cookin’ Good Division v. NLRB, 144 F.3d 830,

836 (D.C. Cir. 1998)). Section 7 of the NLRA protects a

range of employee rights to form, join, and support labor

unions and engage in bargaining and other concerted activities

to advance their interests in the workplace. 29 U.S.C. § 157.

An employer may not use benefit eligibility as a means of

discouraging employees from participating in a representation

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election. See 29 U.S.C. § 158(a)(1). And it may not, without

valid reason, treat employees differently in the promise or

offer of important employee benefits based on the employees’

participation in protected activities. See 29 U.S.C.

§ 158(a)(3).

When Care One timed the announcement of its

discretionary, one-time, system-wide reinstatement of a

valued healthcare benefit just three weeks before a scheduled

representation election, withheld that benefit from only its

union-eligible employees, and offered “the pendency of the

representation election” as its sole reason, it violated the Act.

The Company thereby discouraged union membership in

violation of section 8(a)(1), and discriminated against union-

eligible employees in regard to a term of employment, in

violation of section 8(a)(3).

Substantial evidence supports the Board’s conclusion that

the way in which Care One reinstated the health plan

unlawfully interfered with its employees’ right to organize in

violation of Section 8(a)(1). As we have explained, “an

employer may not withhold a wage increase that would have

been granted but for a union organizing campaign.”

Federated Logistics, 400 F.3d at 927. By the same token,

“implementation of a benefit before a scheduled election, . . .

without a showing of business justification, has itself been

deemed evidence of improper motive.” Pedro’s, Inc. v.

NLRB, 652 F.2d 1005, 1009 n.11 (D.C. Cir. 1981). Section

8(a)(1) prohibits an employer from conferring or withholding

a benefit “with the express purpose of impinging upon

[employees’] freedom of choice for or against unionization”

where such action “is reasonably calculated to have that

effect.” Exchange Parts, 375 U.S. at 409.

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The circumstances here are telling: Three weeks before

the scheduled election, the Company decided to grant a

system-wide benefit, but created a targeted exclusion of the

union-eligible employees. And, according to the parties’ Joint

Stipulation of Facts, “[i]t was because of the pendency of the

representation election” that the Employer excluded eligible

voters from its March 5, 2012, notification to all other

employees that “they would receive the improvements in the

health insurance plan and that their employee contributions

would be reduced on March 23, 2012.” J.A. 93. There is thus

no dispute that Care One would have extended the benefit to

its union eligible employees were it not for their protected

activity.

The particulars of the timing further support the Board’s

finding of unlawful motive. The Company had eliminated the

benefits months earlier, and its decision to reinstate them was

a one-time, wholly discretionary choice. Employees had been

objecting to the benefits cut all along, yet Care One chose

early March to announce its decision to restore them. There is

no evidence that the timing was part of any regularly

scheduled benefits open-season or annual renewal, for

example; the record is devoid of any legitimate business

rationale for the Company’s chosen timing. That timing is

particularly indefensible given that the Company awarded the

benefits retroactive to January, meaning that waiting until

March saved it no money, and making the announcement

before rather than after the election did not ensure earlier

coverage to its employees.

The timing and context, the exclusion of the union-

eligible employees, and the admitted attention to the

upcoming election provide substantial evidence to support the

Board’s determination that Care One unlawfully sought to

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induce the employees to reject the union in violation of

section 8(a)(1).

Substantial evidence also supports the Board’s

conclusion that, by discriminating with respect to a term of

employment, Care One unlawfully discouraged union

membership in violation of section 8(a)(3). A showing of a

targeted withholding of a significant employee benefit only

from those employees who are in the process of exercising or

are about to exercise protected rights may, without more,

“bear[] ‘its own indicia of intent’” to discourage employee

exercise of those rights. See Great Dane, 388 U.S. at 33

(quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 228

(1963)). Where the Board has shown that the “employer

engaged in discriminatory conduct which could have

adversely affected employee rights to some extent,” the

burden shifts to the employer “to establish that he was

motivated by legitimate objectives since proof of motivation

is most accessible to him.” Id. at 34 (emphasis in original).

Because Care One has made no attempt to show that the

exclusion of union-eligible employees from its system-wide

restoration of benefits was motivated by any legitimate

business objective, the Company failed to meet that burden.

Care One argues that its conduct cannot amount to an

unfair labor practice because it was merely attempting to

navigate in good faith what it views as the Board’s

“incoherent jurisprudence.” Reply Br. of Petitioner 1. The

Company insists that, had it included its union-eligible

employees in the benefits increase, it would have risked a

Board determination that it was seeking to buy the

employees’ votes with the improved benefits in violation of

the Act as interpreted in Exchange Parts, 375 U.S. 405. The

Board’s decision in Noah’s New York Bagels, 324 N.L.R.B.

266, 272 (1997), instructed the company to withhold the

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benefits increase from the union-eligible employees, Care

One argues, while the Board’s decision in In Re Noah’s Bay

Area Bagels, LLC, 331 N.L.R.B. 188, 190-91 (2000), required

that it grant them the increase. Care One vividly complains

that the Board adheres to “Janus-faced” precedent—a

“‘damned if you do, damned if you don’t’ doctrine”—that

puts the Company in an untenable position, Br. of Petitioner

26, 28, 32, and that all it was trying to do was to maintain the

status quo, id. at 23.

In particular, Care One contends that the Board’s

“contradictory precedent” makes it impossible for employers

to make benefits changes during the pendency of a

representation election, id. at 22-23, but neither the Board’s

case law nor ours creates the quandary Care One describes.

Contrary to Care One’s contentions, the Act does not require

a company facing a union election to freeze its operations.

An employer may make regularly scheduled benefits changes

if it does so without treating employees differently based on

their participation in protected activities, and without any

motive of inducing employees to vote against the union. See

Pedro’s, Inc., 652 F.2d at 1008. And where its legitimate

business purpose so directs, an employer may move ahead

with even an unscheduled, discretionary benefits change in

the pendency of a representation election; what it must avoid

is doing so for the purpose of attempting to influence

employees’ votes. See Exchange Parts, 375 U.S. at 409. But

where, as here, an employer, without any legitimate

explanation, schedules a discretionary, one-time benefit

restoration just before an election and excludes from the

benefit only the union-eligible employees, that employer

reasonably may be viewed as attempting to discourage

eligible employees’ support for the union. See Perdue Farms,

144 F.3d at 837.

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It simply is not the case, as the Company argues, that the

Board has applied a per se rule that granting or withholding a

discretionary benefits increase once an election is scheduled

violates the Act, irrespective of the employer’s motive. In all

cases, the question is whether the employer’s benefit decision

was made for legitimate business reasons or because of

protected activity. Under established law, an employer facing

a representation election may, for example, continue to

implement a benefit it had previously planned to offer its

employees before they began organizing. See Pedro’s, Inc.,

652 F.2d at 1008. An employer may have a legitimate reason

in some circumstances for conferring a company-wide benefit

on its employees, including union-eligible employees, during

the pendency of an election, in which case extending the

benefit to union-eligible employees would not be a coercive

offer in violation of the Act. See, e.g., Noah’s Bay Area

Bagels, 331 N.L.R.B. at 190. There is, however, good reason

for the Board’s caution that the “more prudent course” is to

not grant a discretionary benefits increase just before a union

election. Noah’s New York Bagels, 324 NLRB at 272. Where

an employer lacks a legitimate business reason for giving a

benefit in the run-up to an election, a brief delay until after the

election is a simple way to guard against a finding that the

employer timed the announcement of the benefit in an effort

to influence employees’ voting behavior.

The Company’s only proffered justification for omitting

the union-eligible employees from the benefit was its legally

erroneous view that the Board’s precedent so required. But

reliance on “dubious legal advice” does not excuse an

employer’s discrimination. See St. Francis Fed’n of Nurses

& Health Prof’ls v. NLRB, 729 F.2d 844, 852 (D.C. Cir.

1984); 800 River Rd. Operating Co. v. NLRB, 784 F.3d 902,

910 n.5 (3d Cir. 2015). Unlike in 800 River Road, where the

Board had made no findings as to the employer’s motivations,

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784 F.2d at 907-08, the Board found here that the sole reason

Care One withheld the benefit increase from the union-

eligible employees and no others was to dissuade employees

from voting for the union in the imminent election.

In view of the applicable legal principles and the record

in its entirety, we hold that substantial evidence supports the

Board’s conclusion that Care One’s announcement of its

decision to selectively restore popular benefits was an effort

to discourage union membership in violation of section

8(a)(1) and was discrimination against union-eligible

employees in violation of section 8(a)(3).

b. Misleading Employer Leaflet

The record also contains substantial evidence to support

the Board’s conclusion that employees would reasonably

understand as a threat in violation of section 8(a)(1) the

leaflet’s claim that the union could call a strike and

“jeopardize your job.” Section 7 protects employees’ rights to

engage in concerted activity in the workplace, including their

right to strike. An employer violates section 8(a)(1)’s bar on

interfering with employees’ exercise of their section 7 rights

when it makes “coercive statements that threaten employees

with job loss or plant closure in retaliation for protected union

activities.” Progressive Elec., Inc. v. NLRB, 453 F.3d 538,

544 (D.C. Cir. 2006).

Care One argues that its leaflet instructing employees that

striking could “jeopardize [their] jobs” was accurate and

therefore not a “threat of reprisal” prohibited by section 8(c).

The Act recognizes an employer’s prerogative to

communicate to its employees “any of [the employer’s]

general views about unionism or any of [its] specific views

about a particular union” only insofar as the communications

do not contain a “threat of reprisal or force or promise of

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benefit.” NLRB v. Gissel Packing Co., 395 U.S. 575, 618

(1969) (quoting 29 U.S.C. § 158(c)); see also Progressive

Elec., 453 F.3d at 544. An employer’s freedom to “make a

prediction as to the precise effects” it expects unionization to

have on the business and its employees is limited to

predictions based on “objective fact[s]” about events beyond

the employer’s control, or a “management decision already

arrived at” before the unionization effort. Gissel Packing,

395 U.S. at 618. Any such employer prediction must also be

“consistent with the law.” Eagle Comtronics, Inc., 263

N.L.R.B. 515, 516 (1982). An employer may truthfully

inform its employees of their rights and duties, and, in

particular, is not required to “fully detail[] the protections”

that a striking employee enjoys in the event of an economic

strike. Id. at 516; see Laidlaw Corp., 171 N.L.R.B. 1366,

1369-70 (1968).

Care One’s leaflet violated those principles because it

failed accurately to characterize the implications of a strike

for employees’ jobs. The leaflet said, “Do you want to give

outsiders the power to jeopardize your job by putting you out

on strike?” J.A. 183. The leaflet overstated the risks to

workers on economic strike, who retain important job

protections: If their jobs have not been filled by

replacements, employees are entitled to full reinstatement

immediately after a strike, or, if their positions have been

filled, “upon the departure of replacements.” Laidlaw, 171

N.L.R.B. at 1369-70. They “remain employees” even where

“their positions are filled by permanent replacements” as long

as the striking employees “unconditionally apply for

reinstatement.” Id. Striking employees are also entitled to

retain their pre-strike seniority when they return to active

status. See, e.g., Olin Mathieson Chem. Corp. v. NLRB, 232

F.2d 158, 160 (4th Cir. 1956), aff’d, 352 U.S. 1020 (1957);

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Republic Steel Corp. v. NLRB, 114 F.2d 820, 821 (3d Cir.

1940).

The Board’s distinction here between Care One’s legally

inaccurate claim that striking employees risk loss of a job and

the permissible explanation that striking employees risk loss

of job status may seem picayune, but we do not gainsay the

Board’s judgment of the significance of that distinction to

employees exercising their protected right to form a union. In

prior cases, the Board has found that employer statements that

informed employees that striking could jeopardize their “job

status” were accurate, and thus lawful, but the Board

underscored that an employee’s “job status” is distinct from

her “job.” When the Board in Rivers Bend, 350 N.L.R.B.

184, 185 (2007), for example, held that the employer’s

statement that hiring striker replacements “puts each striker’s

continued job status in jeopardy” was not a threat of

termination in violation of Section 8(a)(1), the Board

specifically emphasized that the employer “did not say that

replaced strikers would permanently lose their jobs.” Id.; see

Novi American, Inc., 309 N.L.R.B. 544, 545-46 (1992).

The Board reasonably concluded that the Company’s

leaflet was not truthful and could reasonably be construed as

threatening in its blanket statement that striking could cost

employees their job. The Board accordingly was justified in

determining that the leaflet violated employees’ section

8(a)(1) rights.

c. Captive-Audience Meeting and Misleading Slideshow

Substantial evidence also supports the Board’s

conclusion that the Company’s slideshow violated the Act.

Care One’s facilities administrator, George Arezzo, aired the

slideshow at a mandatory, pre-election meeting for union-

eligible employees. The slideshow cast many of those

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employees as supportive of the company’s antiunion message,

even though the Company never verified the employees’

views or obtained their consent to be so depicted.

Because employees have the right to organize and

advocate organization, remain neutral, or support an

employer’s antiunion campaign, an employer may not

attribute an antiunion slogan to its employees without

obtaining the employees’ freely given permission to do so.

See Allegheny Ludlum, 333 N.L.R.B. 734, 744 (2001). In

general, “an employer who has not solicited employees to

participate in a campaign videotape” may “nevertheless use

their images in the videotape without incurring Section

8(a)(1) liability” only if the video, when “viewed as a whole,

does not convey the message that the employees depicted

therein either support or oppose union representation.” Id. at

743 (emphasis omitted). There is no “blanket requirement

that employers must obtain employees’ explicit consent

before including their images in campaign videotapes.” Id. at

744. But an employer may not without permission use an

employee’s image to impute to the employee an opinion about

unionization.

This is not a case of an employer displaying employees’

images without “indicat[ing] the position of the employees on

the subject of unionization.” Id. at 744. The slideshow

included images of happy, union-eligible employees making

heart signs and smiling together, accompanied by the song

“We Are Family.” See J.A. 189. Arezzo had repeatedly tied

the refrain of that song—“we are family”—to the antiunion

message he was promoting. Id. The Board concluded, based

on substantial evidence, that the context, purpose, and

message of the slideshow that Arezzo showed to Care One

employees at the mandatory March 21 meeting implied that

17

the depicted employees opposed unionization—a depiction

that interfered with those employees’ section 7 rights.

Care One argues that the Board erred by looking only to

whether the slideshow was “part of the employer’s

campaign,” without specifically determining that the

slideshow ascribed a pro-union view to employees. Br. of

Petitioner 52 (quoting December 16, 2014, Decision & Order,

J.A. 190). But the Board specifically rejected that argument.

It compared Care One’s slideshow to one in Sony Corp.,

which the Board held would cause a viewer to “reasonably

conclude that the laughing and smiling photographs of unit

employees whose faces appear during the film . . . were meant

to show support for the antiunion message of the film as a

whole.” J.A. 190 (citing Sony Corp. of Am., 313 N.L.R.B.

420, 429 (1993)).

The ALJ’s finding that “there was no explicit antiunion

message” in the slideshow itself, J.A. 190, does not detract

from the Board’s determination that, in the context of

Arezzo’s pitch, the implicit antiunion message was

unmistakable. The “we are family” slogan was pervasive in

the slideshow, and Arezzo reiterated it afterwards and used it

to underscore his antiunion message. See id. The Board

found that “there were unambiguous ‘vote no’ messages

communicated to employees both before and after” the

slideshow was shown, and found that the slideshow formed

part of “the Employer’s crusade to encourage employees to

vote against union representation.” Id. The findings that Care

One’s slideshow attributed an antiunion message to the

employees pictured are supported by substantial evidence.

d. Memo on Peaceful and Respectful Employee Interaction

Finally, we hold that the Board’s conclusion that the

memorandum Arezzo posted three days after the union

18

election violated section 8(a)(1) is supported by substantial

evidence. An employer “violates Section 8(a)(1) when it

maintains a work rule that reasonably tends to chill employees

in the exercise of their Section 7 rights.” Lutheran Heritage

Village-Livonia, 343 N.L.R.B. 646, 646 (2004). The parties

agree that Care One’s pre-existing Workplace Violence

Prevention Policy (the Policy), and the memorandum Arezzo

posted on March 26 attaching and referencing that policy, did

not explicitly prohibit any protected employee activity. The

question is whether Care One’s memorandum reiterating the

anti-violence policy was, in context, unlawful because “(1)

employees would reasonably construe the language to

prohibit Section 7 activity; (2) the rule was promulgated in

response to union activity; or (3) the rule has been applied to

restrict the exercise of Section 7 rights.” Id. at 647. The

Board found the memorandum unlawful for the first two

reasons.

The Board concluded that a reasonable employee could

read the memorandum to, in effect, expand the existing

Workplace Violence Prevention Policy so that it would newly

subject employees to discipline merely for failing to treat

other people in the workplace with “dignity and respect” with

regard to their stance on unionization. We find adequate

record support for the Board’s determination that the memo,

read in context, could reasonably be understood as instituting

a new policy of disciplining protected Section 7 activity.

We emphasize that an exhortation like Arezzo’s urging

employees to behave with “dignity and respect” would not be

unlawful on its own, but for the unlawful implication the

Board identified in Arezzo’s linking that caution to the

disciplinary policy and the referenced protected conduct. We

also underscore that the underlying Policy itself has not been

shown to be unlawful in any aspect. Cf. Adtranz ABB

19

Daimler-Benz Transp., NA v. NLRB, 253 F.3d 19, 25–28

(D.C. Cir. 2001). We have made clear that employers have

the prerogative of “demanding employees comply with

generally accepted notions of civility.” See id. at 27. Nothing

in our decision to sustain the Board’s order here should be

read to discourage employers from insisting that people treat

one another with dignity and respect in the workplace.

Nevertheless, the Board had sufficient basis on which to

conclude that a reasonable employee could understand the

memorandum as not merely an entreaty to respectful

behavior, but as a warning that Care One would discipline

protected activity such as occurred during the “NLRB

election.” J.A. 175. In the context in which it was issued,

Arezzo’s memorandum was reasonably susceptible of that

broader interpretation. The memorandum emphasized with

explicit reference to the just-concluded election that the

employees should “let go” of their differences and start

treating one another with “dignity and respect,” or risk being

in violation of the attached Policy. J.A. 175-76. That Policy

expresses Care One’s commitment to “maintaining a safe,

healthy and secure work environment, and preventing

violence in the workplace.” J.A. 176. It provides that “[a]cts

or threats of violence, including intimidation, harassment

and/or coercion” against anyone on the premises “will not be

tolerated,” and contemplates discipline “up to and including

termination of employment and/or legal action as

appropriate.” Id.

The critical fact, as found by the Board, is that “there is

no record evidence . . . that any threats actually occurred.”

J.A. 177. Given that nobody had engaged in the “violence,

including intimidation, harassment and/or coercion” that the

Policy targets, a reasonable employee might make sense of

the otherwise baffling recirculation of that Policy as aimed at

20

something else. Indeed, the memorandum was explicit about

its subject: the organizing campaign. Because the memo

followed directly on the heels of that concededly peaceful—if

vigorously debated and contested—campaign, a reasonable

employee could understand Care One to be saying that taking

a position in the workplace regarding union rights is

“disrespectful,” threatening, or harassing to co-workers in a

way that could warrant invoking the disciplinary policy. That

the memorandum on its face is not limited to pro-union

activity is beside the point. Care One’s violation was to

respond to peaceful workplace controversy over unionization

by reiterating its anti-harassment policy in a way that, in

context, could reasonably be understood as extending that

policy to protected activity.

We have made clear that it would be “simply

preposterous” to bar an employer from imposing “a broad

prophylactic rule against abusive and threatening language,”

Adtranz, 253 F.3d at 28, but the Board found that Care One

went further. In a context devoid of any of the conduct the

Policy legitimately addresses—threats of violence,

intimidation, harassment or coercion—the Board had

substantial evidence upon which to conclude that Arezzo’s

memorandum could reasonably be understood to presage

application of the disciplinary policy to the protected activity

to which Arezzo’s memorandum explicitly referred.

***

We therefore deny Care One’s petition for review and

grant the Board’s cross-application for enforcement with

respect to the unfair labor practices found by the Board.

So ordered.