The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2023 Decided March 1, 2024
No. 22-1332
NCRNC, LLC, D/B/A NORTHEAST CENTER FOR
REHABILITATION AND BRAIN INJURY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
1199SEIU UNITED HEALTHCARE WORKERS EAST,
INTERVENOR
Consolidated with 23-1023
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Dawn J. Lanouette argued the cause for petitioner. With
her on the briefs was James S. Gleason.
2
Eric Weitz, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick, Deputy
Associate General Counsel, David Habenstreit, Assistant
General Counsel, and Kira Dellinger Vol, Supervisory
Attorney.
Before: KATSAS and RAO, Circuit Judges, and GINSBURG,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: This case involves a challenge to a
National Labor Relations Board decision finding several unfair
labor practices against NCRNC, LLC, which operates the
Northeast Center for Rehabilitation and Brain Injury
(“Northeast”). We deny the petition for review and grant the
Board’s cross-petition for enforcement, summarily affirming
the Board’s conclusions with one exception. The Board erred
in finding that unlawful surveillance was supported by
Northeast’s distribution of flyers to its employees. In these
circumstances, sharing informational flyers was an exercise of
free speech protected by Section 8(c) of the National Labor
Relations Act (“NLRA”). Other facts in the record, however,
provide substantial evidence to uphold the finding of unlawful
surveillance, and we grant enforcement on these more limited
grounds.
I.
In the agency proceedings, the facts and the credibility of
witnesses were sharply contested. The administrative law judge
(“ALJ”) generally found the testimony of the Board’s
witnesses more credible than testimony from Northeast’s
witnesses, and the Board adopted the ALJ’s determinations.
3
NCRNC, LLC, 372 NLRB No. 35, at *1 (Dec. 16, 2022). In its
petition for review, Northeast did not contest these credibility
determinations. See Tr. of Oral Arg. at 6–8 (counsel confirming
that Northeast did not challenge the Board’s credibility
determinations, only the “legal conclusion” that Northeast
“interfer[ed] with union activity”). Accordingly, we present the
facts as found by the Board.
Northeast is a rehabilitation facility for patients recovering
from brain injuries. In June 2019, 1199SEIU United Healthcare
Workers East (“Union”) began a campaign to organize
Northeast’s employees, holding meetings outside of work and
soliciting authorization cards. Northeast’s leadership became
aware of the unionization effort and hired Keith Peraino, a
labor relations consultant, to assist with the administration’s
response and to “get ahead of the union talk.” Peraino
interviewed managers and staff to evaluate facility conditions
and trained managers on legal responses to the union campaign.
The unionization drive continued through the summer,
and, in October, the Union petitioned the Board for a
representation election. After the petition was filed, Peraino
began holding twice-daily meetings with the managers. At the
morning meetings, the managers were asked to distribute
informational “fact of the day” flyers, which included quotes
from a guide to the NLRA, and get employee feedback. At the
afternoon meetings, the managers relayed that feedback and
noted whether any employees showed interest in the topics or
had questions. Managers also reported employees’ body
language and attitudes toward the flyers, including whether
employees made eye contact, reacted in other ways, like
crumpling the flyers, or spoke to anyone else after talking with
a manager.
4
Around the same time, Northeast’s leadership
implemented a “Manager on Duty” program, in which
managers would rotate around different floors and purportedly
assist staff.1 Yet Tara Golden, a manager, testified that
managers were not required to assist staff. Rather, they were
directed to observe if employees gathered in groups, to report
behavior around management, and to monitor “suspicious
activities.”
Employees found the heightened presence of managers at
the facility unusual. One nurse, Kelly Leonard, testified the
managers’ behavior was odd: they just “[stood] by the time
clock” or walked around talking to employees without being
able to assist with patient care. Golden similarly testified that
managers who “didn’t belong on the units” were talking to
staff. She said employees characterized the increased activity
as a “witch hunt” for Union supporters. When Golden raised
concerns with her supervisors, she was informed that Northeast
was “trying to figure out who was for the Union and who
wasn’t.” Golden was subsequently fired.
The Union filed several unfair labor practice charges.
Golden filed a separate unfair labor practice charge, which was
consolidated with the Union’s complaint.
The Board’s General Counsel issued a complaint against
Northeast. After a hearing, the ALJ found that Northeast
1
Northeast argues this program began in August as part of Peraino’s
initial recommendations, but the Board credited testimony indicating
the program started in October. NCRNC, LLC, 372 NLRB No. 35, at
*3. Northeast points to record evidence that Patrick Weir, the
highest-ranking official at Northeast, increased his visibility at the
facility in July, as part of a “union avoidance” effort. That evidence,
however, does not overcome the Board’s evidence that the more
comprehensive Manager on Duty program was instituted in October.
5
violated Section 8(a)(1) and (3) of the NLRA by discharging
two employees for their union activity. See National Labor
Relations Act, Pub. L. No. 74-198, 49 Stat. 449, 452 (1935)
(codified as amended at 29 U.S.C. § 158(a)(1), (3)). The ALJ
found additional violations of Section 8(a)(1) for, among other
things, unlawfully surveilling and interrogating employees and
dismissing Golden for her refusal to surveil employees. The
Board largely adopted the ALJ’s findings and affirmed.
NCRNC, LLC, 372 NLRB No. 35, at *1–2. Member Ring
dissented on several issues. As relevant here, he maintained
that Northeast’s activity did not constitute unlawful
surveillance because the distribution of literature to its
employees was protected free speech activity under Section
8(c) of the NLRA. Id. at *13–17 (Ring, dissenting in part); see
also 29 U.S.C. § 158(c).
Northeast petitions for review and the Board cross-
petitions for enforcement. We have jurisdiction under 29
U.S.C. § 160(e), (f).
II.
On a petition for review, we “must evaluate both the
Board’s statements of law and application of law to the facts.”
Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 475 (D.C.
Cir. 2020). The Board’s findings must be supported by
substantial evidence, which is such evidence that “a reasonable
mind might accept … as adequate to support a conclusion.” Id.
at 484 (cleaned up). We will vacate the Board’s decision if “the
Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.” Fred Meyer Stores,
Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017) (cleaned up).
“[R]eviewing courts are not to abdicate the conventional
judicial function because Congress has imposed on them
responsibility for assuring that the Board keeps within
6
reasonable grounds.” Circus Circus Casinos, 961 F.3d at 475
(cleaned up).
Substantial evidence supports the Board’s determinations
that Northeast violated Section 8(a)(1) and (3) when it
suspended and discharged two employees for their union
activities, one of whom it also threatened and coercively
interrogated. Northeast also violated Section 8(a)(1) by
discharging Golden for refusing to commit unlawful
surveillance. Therefore, we summarily grant enforcement on
these claims for the reasons stated in the Board’s order.2
III.
The Board also determined Northeast unlawfully
surveilled employees. It is well established that an employer
violates Section 8(a)(1) by engaging in or creating an
impression of surveillance because such conduct “interfere[s]
with, restrain[s], or coerce[s] employees” attempting to
exercise their right to self-organization and collective
bargaining. See Parsippany Hotel Mgmt. Co. v. NLRB, 99 F.3d
413, 420 (D.C. Cir. 1996) (quoting 29 U.S.C. § 158(a)(1)).
Employers cannot engage in conduct “so out of the ordinary
that it creates the impression of surveillance.” Id. (cleaned up).
Routine employer observation of employees who may be
engaged in union activity, however, is not illegal. “If a union
wishes to organize in public it cannot demand that management
2
Northeast does not challenge the Board’s determinations that it
violated Section 8(a)(1) on the following charges: threatening to
report a nurse to the state nursing authority in retaliation for her union
activity; creating the impression of surveillance; and posting a
memorandum blaming the Union for Northeast’s decision to institute
a wage freeze. The Board is entitled to summary enforcement on
these violations. See, e.g., Flying Food Grp., Inc. v. NLRB, 471 F.3d
178, 181 (D.C. Cir. 2006).
7
must hide.” The Broadway, 267 NLRB 385, 400 (1983); see
also Parsippany Hotel, 99 F.3d at 420 (“Th[e] prohibition
against surveillance does not prevent employers from
observing public union activity.”) (cleaned up). An employer’s
actions are unlawful only when they have a “reasonable
tendency in the totality of the circumstances to intimidate the
employees.” Intertape Polymer Corp. v. NLRB, 801 F.3d 224,
236 (4th Cir. 2015) (cleaned up).
In assessing the totality of the circumstances to find
unlawful surveillance, the Board relied in part on Northeast’s
distribution of flyers and observation of employee reactions.
As a matter of law, however, these actions cannot support a
finding of unlawful surveillance because the flyers were a
protected exercise of Northeast’s free speech rights under
Section 8(c) of the NLRA. Nevertheless, the Board’s other
findings provide substantial evidence that Northeast
unlawfully surveilled its employees, and we enforce the
Board’s decision on these grounds.3
3
Northeast also raises a due process objection. The original
complaint alleged Northeast created an unlawful impression of
surveillance, unlawfully instructed managers to surveil employees,
and unlawfully discharged a supervisor for refusing to surveil
employees, but the complaint did not allege that Northeast
unlawfully surveilled its employees. The ALJ sua sponte found an
unlawful surveillance violation, which the Board upheld. See
NCRNC, LLC, 372 NLRB No. 35, at *6 n.21. Northeast claims it did
not have an opportunity to present a complete defense against this
charge. This argument fails because the unlawful surveillance
violation was “closely connected to the subject matter of the
complaint and [was] fully litigated.” Bellagio, LLC v. NLRB, 854
F.3d 703, 712 (D.C. Cir. 2017) (cleaned up).
8
A.
The Board found Northeast engaged in unlawful
surveillance in part because managers distributed flyers and
sought to “gain information about the union sentiments of its
employees by observing their body language [and] reactions to
leafletting.” NCRNC, LLC, 372 NLRB No. 35, at *7. Because
handing out flyers “reasonably cause[d] employees to
reveal … clues about their union support,” the Board
analogized Northeast’s flyering campaign to unlawful
interrogation that “in certain circumstances … has a reasonable
tendency to ‘interfere with, restrain, or coerce’ employees in
their exercise of statutory rights.” Id. at *7 & n.23 (cleaned up).
Distributing informational flyers and observing employee
reactions, however, do not constitute unlawful surveillance.
When a manager shares a flyer with an employee and engages
in non-coercive “one-on-one persuasion,” that is protected
speech under the NLRA. See id. at *17 (Ring, dissenting in
part). Section 8(c) provides that: “The expressing of any views,
argument, or opinion, or the dissemination thereof, whether in
written, printed, graphic, or visual form, shall not constitute or
be evidence of an unfair labor practice” unless it contains a
“threat of reprisal or force or promise of benefit.” 29 U.S.C.
§ 158(c). The Supreme Court has emphasized that Section 8(c)
recognizes important First Amendment rights and “precludes
regulation of [noncoercive] speech about unionization.”
Chamber of Commerce v. Brown, 554 U.S. 60, 67–68 (2008).
And we have recognized that “an employer’s free speech right
to communicate his views to his employees is firmly
established and cannot be infringed by … the Board.” See
Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130, 1140 (D.C.
Cir. 1994) (quoting NLRB v. Gissel Packing Co., 395 U.S. 575,
617 (1969)); see also Cadillac of Naperville, Inc. v. NLRB, 14
F.4th 703, 723 (D.C. Cir. 2021) (Katsas, J., concurring in part
9
and dissenting in part) (observing that in labor disputes, there
should be a presumption “in favor of speech rather than against
it”). In short, we favor “uninhibited, robust, and wide-open
debate in labor disputes.” Old Dominion Branch No. 496, Nat’l
Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 273 (1974).
Here, Northeast’s persuasion efforts were protected speech
under Section 8(c). The NLRB has long recognized that
employers are “explicitly accorded a right to ‘influence’ [their]
employees by verbal appeals to reason.” Standard-Coosa-
Thatcher Co., 85 NLRB 1358, 1363 (1949); cf. Intertape
Polymer, 801 F.3d at 240 (holding that “even if … leaflet[t]ing
is construed as ‘out of the ordinary,’ [that] is plainly
insufficient to establish … coercion”). Northeast’s supervisors
instructed managers to distribute flyers, discuss the content
with employees, note their reactions and responses, and report
back. These actions were lawful because “an employer is free
to communicate to his employees any of his general views
about unionism.” Gissel Packing, 395 U.S. at 618.
Of course, Section 8(c) does not protect the “threat of
reprisal or force or promise of benefit.” 29 U.S.C. § 158(c). We
have, for instance, upheld a finding of unlawful surveillance
after an interrogation in which managers explicitly accused
employees of supporting a union and asked them who was
“‘behind’ the Union.” Gold Coast Rest. Corp v. NLRB, 995
F.2d 257, 266 (D.C. Cir. 1993); see also Allegheny Ludlum
Corp., 333 NLRB 734, 745–46 (2001), enfd., 301 F.3d 167 (3d
Cir. 2002) (finding unlawful polling when employees were
solicited to appear in an anti-union film). Northeast’s actions,
however, are not the equivalent of unlawful interrogation or
polling. See NCRNC, LLC, 372 NLRB No. 35, at *17 (Ring,
dissenting in part). The flyers simply included language from a
guide to the NLRA, which the record indicates is published by
the Board on its website. The Board does not suggest managers
10
threatened or questioned employees about improper topics
when distributing the flyers. See id. at *3–4. Managers merely
observed employee reactions to the flyers and conversations
about unionization. We agree with Member Ring that such
observations cannot reasonably constitute a threat nor create a
reasonable impression that the employer is trying to inhibit
union activity. Id. at *17 (Ring, dissenting in part). The
employees were not asked to say or do anything that would
reveal their views, and management observed only what is
inevitably witnessed in any personal encounter. Unlawful
surveillance cannot be defined as broadly as the Board’s
decision suggests because one-on-one persuasion efforts are
protected by Section 8(c) in the absence of any coercion or
threats.
Nor did the Board proffer any evidence that Northeast’s
efforts at one-on-one persuasion had a “reasonable tendency”
to “intimidate” employees. See Intertape Polymer, 801 F.3d at
236 (cleaned up); see also Greater Omaha Packing Co. v.
NLRB, 790 F.3d 816, 823 (8th Cir. 2015) (holding that the
Board cannot “ignore [the] critical coercion element” in an
unlawful surveillance case). Employers may investigate
employees’ views on unionization so long as employers use
non-coercive means to discover those views. “[R]equiring
supervisors to report what they see and hear in the normal
course of their day … is not illegal.” NCRNC, LLC, 372 NLRB
No. 35, at *14 (Ring, dissenting in part) (cleaned up). Holding
otherwise would prevent an employer from discussing its
perspective on unionization with employees in violation of
Section 8(c).
In sum, Northeast’s distribution of flyers and one-on-one
persuasion efforts were protected by Section 8(c), and therefore
the Board erred in determining that these actions contributed to
a finding of unlawful surveillance.
11
B.
The Board also concluded Northeast engaged in unlawful
surveillance by implementing its Manager on Duty program.
Primarily relying on the testimony of Golden and Leonard, the
Board determined the increased presence of managers in the
facility during the union drive, at abnormal times and locations,
was “atypical monitoring.” Id. at *6–7. The Board found this
monitoring had “no legitimate business purpose unrelated to
employees’ [unionization] activity, and it had a reasonable
tendency to chill” protected activity in violation of Section
8(a)(1). Id. at *7. In light of the unchallenged credibility
findings, we hold the Board’s decision was supported by
substantial evidence.
A finding of unlawful surveillance requires employer
conduct that is objectively “so out of the ordinary that it creates
the impression of surveillance.” Parsippany Hotel, 99 F.3d at
420 (cleaned up). The Board must consider “the duration of the
observation, the employer’s distance from its employees while
observing them, and whether the employer engaged in other
coercive behavior during its observation.” Bellagio, LLC v.
NLRB, 854 F.3d 703, 711 (D.C. Cir. 2017) (cleaned up). The
key is the “employer’s reason for being in a particular place at
a particular time.” Intertape Polymer, 801 F.3d at 239.
Under our caselaw, unlawful surveillance occurs when
there are unexplained and unjustified changes in the visibility
of management and observation of employees. Compare
Parsippany Hotel, 99 F.3d at 419–20 (upholding unlawful
surveillance, when, in the lead-up to a union election, the
employer increased security, and numerous employees testified
about the pernicious effect of the increased observation), with
Bellagio, 854 F.3d at 711–12 (rejecting the Board’s finding of
unlawful surveillance when a supervisor briefly observed and
12
followed an employee in a well-trafficked area during the
supervisor’s regular job duties); accord Sprain Brook Manor
Nursing Home, LLC, 351 NLRB 1190, 1190–91 (2007)
(finding unlawful surveillance when a supervisor went to the
facility on the weekend to observe union activity and stood by
the exit door to monitor employees).
In determining whether the Board’s findings are supported
by substantial evidence, our review here is particularly limited
because Northeast’s petition does not challenge the Board’s
credibility determinations regarding Golden and Leonard.
Based on their testimony, after the Manager on Duty program
began in October, managers came in during off-shifts to
monitor the employees and look for “suspicious activities” to
uncover which employees were “for the Union.”4
Relying on the unchallenged record before us, the behavior
of management during the union drive represented a significant
departure from prior practice. Only during the union drive were
managers and supervisors present in the facility at unusual
times and locations. And only during the organizing effort did
management watch staff in conspicuous locations, such as by
the time clock, for extended periods. Furthermore, Northeast’s
leadership admitted the program’s purpose was to uncover
employees’ union sentiments.5 This evidence is sufficient for a
4
The ALJ did not credit Northeast’s witnesses who testified that the
Manager on Duty program was enacted solely in response to
employee concerns about manager visibility. The Board affirmed
these determinations and Northeast does not challenge them in its
petition.
5
Northeast also maintains that, as a healthcare facility, its managers
have continuous responsibility for their staff and could always be
ordered to work at different times. But the fact that Northeast could
legitimately increase management supervision does not address
13
reasonable person to find the Manager on Duty program
deviated from the company’s usual practices and was enacted
solely to inhibit employees from participating in protected
union organizing activities.
***
Section 8(c) of the National Labor Relations Act protects
freedom of speech in labor disputes. Northeast’s persuasion
efforts and distribution of flyers to employees were protected
free speech activity. The Board therefore erred in concluding
that such activity supported a finding of unlawful surveillance.
Northeast’s program of increased manager visibility and
observation, however, independently provided substantial
evidence to support the finding. We therefore grant the Board’s
cross-petition for enforcement and deny Northeast’s petition
for review.
So ordered.
whether the Manager on Duty program constituted unlawful
surveillance in these circumstances.