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
No. 22-1332
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided March 1, 2024
Argued October 13, 2023; Consolidated with 23-1023
Dawn J. Lanouette argued the cause for petitioner. With her on the briefs was James S. Gleason.
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.
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.
Around the same time, Northeast‘s leadership implemented a “Manager on Duty” program, in which managers would rotate around different floors and purportedly assist
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
violated
Northeast petitions for review and the Board cross-petitions for enforcement. We have jurisdiction under
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
reasonable grounds.” Circus Circus Casinos, 961 F.3d at 475 (cleaned up).
III.
The Board also determined Northeast unlawfully surveilled employees. It is well established that an employer violates
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
A.
The Board found Northeast engaged in unlawful surveillance in part because managers distributed flyers and sought to “gain information about the union sentiments
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).
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
Of course,
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
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
In sum, Northeast‘s distribution of flyers and one-on-one persuasion efforts were protected by
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
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, 854 F.3d at 711 (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
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
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.
***
So ordered.
whether the Manager on Duty program constituted unlawful surveillance in these circumstances.