Care One at Madison Avenue, LLC v. National Labor Relations Board, 832 F.3d 351

Background

Care One at Madison Avenue (a New Jersey nursing facility in a multi-facility network) cut health benefits effective Jan 1, 2012; employees at the Morristown facility were organizing with 1199 SEIU and petitioned for an election (filed Jan 23, 2012).
On March 5, 2012 (three weeks before the scheduled election), Care One announced a discretionary, system-wide restoration of health benefits effective the day of the election, but withheld the written notification from union-eligible employees while posting it where they could see it and refusing to discuss it when asked.
In the run-up to the election, Care One distributed antiunion leaflets warning that a strike could “jeopardize your job,” held a mandatory captive-audience meeting where a slideshow set employees’ photos to “We Are Family” without consent, and urged employees to “vote no.”
The March 24 election result was 57 for the union, 58 against; the Union filed objections and the Board ordered a new election and pursued unfair labor practice charges.
The ALJ and the NLRB found that Care One violated NLRA sections 8(a)(1) and 8(a)(3) by (1) selectively withholding the benefit announcement from union-eligible employees, (2) distributing a misleading leaflet that could be read as a threat, (3) using employees’ images in an antiunion slideshow without consent, and (4) posting a post-election memorandum attaching a workplace-violence policy that reasonably could be read to threaten discipline for protected activity.
The Third Circuit denied review and enforced the Board’s order, finding substantial evidence supported the Board’s conclusions as to each alleged unfair labor practice.

Issues

Issue	Board / Plaintiff's Argument	Care One / Defendant's Argument	Held
Selective pre-election benefit announcement	Timing and exclusion of union-eligible employees was intended to influence the vote; withholding a discretionary benefit penalized organizing and discriminated against voters	Company claimed it acted to avoid running afoul of inconsistent Board precedent and believed exclusion was required or prudent during an election	Substantial evidence supported violations of 8(a)(1) and 8(a)(3); exclusion lacked legitimate business justification and was coercive
Leaflet warning that strike could “jeopardize your job”	Statement overstated legal consequences of striking and was reasonably read as a threat deterring protected activity	Claimed accuracy and protected free expression under 8(c) — employer may predict effects of strike	Violative: leaflet was misleading and could be construed as threatening job loss, unlawfully interfering with Section 7 rights
Mandatory meeting + slideshow using employees’ photos	Slideshow, shown at a captive-audience meeting and paired with a pro-management “we are family” message, implied employees opposed unionization; using images without consent imputed antiunion views	Contended slideshow lacked explicit antiunion statements and did not on its face attribute views to pictured employees	Substantial evidence supported 8(a)(1) violation: context conveyed an implicit antiunion message and attributed views to employees without consent
Post-election memorandum attaching workplace-violence policy	Memo, following a contested but peaceful election and referencing disrespect/threats, could reasonably be read to threaten discipline for protected activity and chill Section 7 rights	Argued memo merely urged civility and reiterated a lawful anti-violence policy	Board’s finding upheld: in context memo could reasonably be interpreted as threatening discipline for protected union activity and thus chilled rights under 8(a)(1)

Key Cases Cited

NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775 (Sup. Ct.) (Board bears primary responsibility for national labor policy)
Universal Camera Corp. v. NLRB, 340 U.S. 474 (Sup. Ct.) (Board factual findings upheld if supported by substantial evidence)
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (Sup. Ct.) (withholding or conferring benefits to influence union choice is unlawful)
NLRB v. Exchange Parts Co., 375 U.S. 405 (Sup. Ct.) (employer may not grant/withhold benefits to impinge on employees’ free choice)
Gissel Packing Co. v. NLRB, 395 U.S. 575 (Sup. Ct.) (limits on employer predictions about unionization; threats/promise prohibition)
Federated Logistics & Operations v. NLRB, 400 F.3d 920 (D.C. Cir.) (employer must act as if union not on scene when changing benefits)
Perdue Farms v. NLRB, 144 F.3d 830 (D.C. Cir.) (timing of benefit implementation before election may evidence improper motive)
Pedro’s, Inc. v. NLRB, 652 F.2d 1005 (D.C. Cir.) (implementation of benefits before election without business justification suggests improper motive)
Progressive Elec., Inc. v. NLRB, 453 F.3d 538 (D.C. Cir.) (coercive statements threatening job loss or plant closure violate 8(a)(1))
Adtranz ABB Daimler-Benz Transp., NA v. NLRB, 253 F.3d 19 (D.C. Cir.) (employers may adopt rules against abusive language, but context matters for chilling effect)