United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2011 Decided March 13, 2012
No. 11-1107
VERITAS HEALTH SERVICES, INC., DOING BUSINESS AS CHINO
VALLEY MEDICAL CENTER,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED NURSES ASSOCIATIONS OF CALIFORNIA/UNION OF
HEALTH CARE PROFESSIONALS, NUHHCE, AFSCME,
AFL-CIO,
INTERVENOR
Consolidated with 11-1127
On Petition for Review
and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Theodore R. Scott argued the cause for petitioner. With
him on the briefs was Edward F. Berbarie. Steven L. Rahhal
entered an appearance.
2
Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, and Jill A.
Griffin, Supervisory Attorney. Ruth E. Burdick, Attorney,
entered an appearance.
Lisa C. Demidovich argued the cause for intervenor
United Nurses Associations of California/Union of Health
Care Professionals, NUHHCE, AFSCME, AFL-CIO, in
support of respondent.
Before: GARLAND and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: In an April 2010 union
election, registered nurses working for Veritas Health
Services voted to make the United Nurses Associations of
California/Union of Health Care Professionals their
bargaining representative. But Veritas would not bargain
with the Union because Veritas claimed that pro-Union
conduct by supervising charge nurses had coerced the
registered nurses’ votes and tainted the election. Rejecting
Veritas’s claims, the National Labor Relations Board certified
the Union and found that Veritas had committed an unfair
labor practice by refusing to bargain. Veritas has petitioned
for review in this Court. We conclude that precedent and
substantial evidence support the Board’s conclusions. We
therefore deny Veritas’s petition and grant the Board’s cross-
application for enforcement of its order.
3
I
By early 2010, the United Nurses Associations of
California/Union of Health Care Professionals organized a
campaign to represent the nurses at the Chino Valley Medical
Center, a community hospital operated by Veritas Health
Services. In order for the Union to successfully petition the
National Labor Relations Board to hold an election, the Union
needed cards authorizing representation from 30% of
employees. See 29 C.F.R. § 101.18(a).
In seeking the necessary authorization cards, the Union
reached out to registered nurses. It also contacted charge
nurses. Charge nurses supervise registered nurses by, among
other things, directing and assigning work to registered
nurses.
The Union’s efforts to recruit charge nurses succeeded.
Several charge nurses signed authorization cards, met with
Union representatives, and attended Union meetings. Some
also expressed pro-Union sympathies.
Some of the charge nurses actively encouraged
subordinate registered nurses to support the Union. The two
charge nurses who most actively promoted the Union were
Angelica Silva and Cheryl Gilliatt. Silva talked to six
registered nurses about future Union meetings, forwarding
text-message reminders to some and approaching others in
person to ask if they planned to attend. Gilliatt did even
more. She told about 10 registered nurses to attend the
Union’s meetings, saying, for example, “You need to attend
after work today.” Hr’g Tr. 310, May 26, 2010. And she
encouraged them to sign authorization cards, asking, for
example, “Have you signed a card? When are you planning
on going? You only have until Sunday, and you need to go
and sign the card.” Id. at 328.
4
On February 22, 2010, after collecting the necessary
authorization cards, the Union petitioned the National Labor
Relations Board to hold an election. The election was
scheduled for April 1 and 2, 2010.
On March 5, the parties stipulated that these charge
nurses were supervisors under the National Labor Relations
Act. As a result, the charge nurses could not vote in the
election. After the stipulation, charge nurses apparently
stopped most of their pro-Union conduct. Soon thereafter,
moreover, Veritas promoted Gilliatt and Silva to managerial
positions. Perhaps not coincidently, both Gilliatt and Silva
then actively opposed the Union. Gilliatt told 20 to 30
registered nurses that she no longer supported the Union.
Silva told four registered nurses the same thing. And during
election week, both signed letters – personalized for every
registered nurse and printed on company letterhead – that
urged the registered nurses to vote against the Union:
Thursday, April 1 and Friday, April 2, 2010 are very
important dates for you, your family and the hospital.
It’s very important that you vote and please remember
your vote is secret.
We’ve already seen the union’s misrepresentation,
bullying tactics and the divisiveness that has resulted. In
contrast, we have been open and honest with you and
provided only factual information to help you make an
informed decision.
We the Chino Family enjoy our relationship and hope to
maintain a union free environment. Please vote no on
Thursday, April 1 and Friday, April 2, 2010.
5
Letter from Chino Valley Medical Center, Joint Appendix
653. The letters were distributed to most of the registered
nurses.
The Union won the election, with 72 votes in favor of the
Union and 39 votes against (plus four contested ballots).
Veritas filed objections with the Board, claiming that the
charge nurses’ pro-Union conduct had tainted the election by
coercing and interfering with the free choice of the registered
nurses they supervised. After a multi-day hearing, the
Administrative Law Judge ruled against Veritas. The Board
adopted the ALJ’s opinion and certified the Union. The next
day, the Union sent Veritas a letter asking Veritas to bargain
collectively. Veritas refused, saying the certification was
illegitimate because the election was invalid. The day after
that, the Union filed an unfair labor practice charge for
refusing to bargain. Because the Board had already upheld
the election, it rejected Veritas’s claims and found that Veritas
committed an unfair labor practice by refusing to bargain with
the Union. Veritas has petitioned this Court for review, and
the Board has cross-applied for enforcement of its order.
II
An employer must bargain collectively with a union that
is duly certified as the employees’ bargaining representative.
If the employer refuses to do so, it commits an unfair labor
practice under Section 8(a)(5) of the National Labor Relations
Act. 29 U.S.C. § 158(a)(5). “An employer who violates
section 8(a)(5) also derivatively violates section 8(a)(1),
which makes it unlawful for an employer ‘to interfere with,
restrain, or coerce employees in the exercise of’ their statutory
labor rights.” Regal Cinemas, Inc. v. NLRB, 317 F.3d 300,
309 n.5 (D.C. Cir. 2003) (quoting 29 U.S.C. § 158(a)(1)).
6
Here, Veritas admits that it refused to bargain collectively
with the Union. But it defends its refusal to bargain on the
ground that the Union should not have been certified.
Specifically, Veritas argues that the charge nurses’ pro-Union
conduct made the union election invalid.
A
Our review of this kind of NLRB decision is narrow.
“We must uphold the judgment of the Board unless, upon
reviewing the record as a whole, we conclude that the Board’s
findings are not supported by substantial evidence, or that the
Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.” Wayneview Care
Center v. NLRB, 664 F.3d 341, 348 (D.C. Cir. 2011) (citation
omitted). In the specific context of a representation election,
we “will set aside a representation election only if the
petitioning party demonstrates that the conduct complained of
interfered with the employees’ exercise of free choice to such
an extent that it materially affected the election.” U-Haul Co.
of Nevada v. NLRB, 490 F.3d 957, 961 (D.C. Cir. 2007)
(citation, internal quotation marks, and brackets omitted).
Under that standard, the question here is whether the pro-
Union conduct of the charge nurses rose to the level of
interference with the registered nurses’ exercise of free
choice.
In analyzing that question, we begin by noting that this
case presents the unusual situation of a supervisor alleged to
have engaged in improper interference in support of a union.
The National Labor Relations Act excludes supervisors from
its definition of “employee.” See 29 U.S.C. § 152(3). An
employer thus has “the right to discharge such supervisors
because of their involvement in union activities or union
membership.” Florida Power & Light Co. v. Int’l
7
Brotherhood of Electrical Workers, Local 641, 417 U.S. 790,
808 (1974). Given that reality, supervisors do not usually
engage in pro-union activities against the wishes of
management. But the issue of pro-union conduct by a
supervisor sometimes arises when it was unclear or disputed
at the time of the pro-union activity whether the employee
was a statutory supervisor. See, e.g., Northeast Iowa
Telephone Co., 346 N.L.R.B. 465, 466 (2006); Terry Machine
Co., 332 N.L.R.B. 855, 855-56 (2000).
When faced with pro-union conduct by supervisors, the
Board uses a two-pronged test – known as the Harborside test
– to decide whether the conduct requires setting aside the
election:
(1) Whether the supervisor’s prounion conduct
reasonably tended to coerce or interfere with the
employees’ exercise of free choice in the election.
This inquiry includes: (a) consideration of the nature and
degree of supervisory authority possessed by those who
engage in the prounion conduct; and (b) an examination
of the nature, extent, and context of the conduct in
question.
(2) Whether the conduct interfered with freedom of
choice to the extent that it materially affected the
outcome of the election, based on factors such as (a) the
margin of victory in the election; (b) whether the conduct
at issue was widespread or isolated; (c) the timing of the
conduct; (d) the extent to which the conduct became
known; and (e) the lingering effect of the conduct.
Harborside Healthcare, Inc., 343 N.L.R.B. 906, 909 (2004).
8
Pro-union speech by a supervisor, standing alone, falls
short of coercion or interference under Harborside’s first
prong. In Northeast Iowa Telephone Company, for example,
the Board found no coercion or interference even though
managers attended union meetings, participated in those
meetings, told employees that the union could help prevent
layoffs, and signed authorization cards in front of employees.
See 346 N.L.R.B. at 466-67.
On the other side of the line, supervisory solicitation of
authorization cards is considered coercive. See Chinese Daily
News, 344 N.L.R.B. 1071, 1072 (2005). The solicitation of
an authorization card by a supervisor “has an inherent
tendency to interfere with the employee’s freedom to choose
to sign a card or not.” Harborside Healthcare, Inc., 343
N.L.R.B. at 911. The employee “will reasonably be
concerned that the ‘right’ response will be viewed with favor,
and a ‘wrong’ response with disfavor.” Id. The Board has
found solicitation not only in cases of direct solicitation but
also in cases where “employees had reason to believe that
whether they signed a card would become known” to their
pro-union supervisor. Madison Square Garden CT, LLC, 350
N.L.R.B. 117, 122 (2007).
Importantly, even if a supervisor’s initial pro-union
conduct would be considered coercion or interference, the
Board will uphold the election if “mitigating circumstances
sufficiently negated the inherently coercive effect” of the
conduct – or, put another way, if in light of the mitigating
circumstances, the conduct did not materially affect the
outcome of the election. SNE Enterprises, Inc., 348 N.L.R.B.
1041, 1042 (2006); see also Madison Square Garden CT,
LLC, 350 N.L.R.B. at 122; Harborside Healthcare, Inc., 343
N.L.R.B. at 910 n.12, 914.
9
B
Veritas complains here that several charge nurses spoke
in favor of the Union, attended Union meetings, and signed
authorization cards in front of registered nurses. According to
Veritas, those activities amount to supervisory solicitation of
authorization cards – conduct constituting impermissible
coercion. But in Northeast Iowa Telephone Company, the
Board found almost identical conduct not coercive. See 346
N.L.R.B. at 466-67. Veritas also complains that the charge
nurses were in close contact with the Union, regularly
meeting with Union officials and referring questions about
unionization to the Union’s organizing director. Those facts,
however, do not defeat the Board’s finding that the charge
nurses’ conduct fell short of coercion under the Harborside
test. Harborside permits a supervisor to support a union. A
supervisor’s conduct presents a problem when it reasonably
tends to coerce or interfere with the employees’ free choice in
the election. Many charge nurses here clearly supported the
Union. But without any indication in the record that the
support tended to coerce or interfere with the registered
nurses’ free choice, we will not disturb the Board’s reasonable
conclusion with respect to those charge nurses.
The conduct of charge nurses Gilliatt and Silva presents a
closer question. Silva approached or sent text messages to six
registered nurses to notify them about Union meetings.
Gilliatt instructed about 10 registered nurses to attend the
meetings. And she actually told some registered nurses to
sign authorization cards.
But even assuming that the initial conduct of Gilliatt and
Silva tended to coerce or interfere with the registered nurses’
free choice, their conduct was mitigated by their subsequent
actions. After Gilliatt and Silva were promoted, they actively
10
campaigned against the Union in the run-up to the election.
Gilliatt told 20 to 30 registered nurses that she no longer
supported the Union; Silva told four. And Gilliatt and Silva
both signed personalized company letters that urged
registered nurses to vote against the Union. The letters
reached most registered nurses.
By the time of the election, therefore, registered nurses
would have had no reason to feel pro-Union coercion or
interference from Gilliatt’s or Silva’s earlier conduct. Indeed,
any registered nurses who felt pressured by Gilliatt or Silva
would have felt coerced to vote against the Union.
In short, Veritas has not shown that we should overturn
the Board’s decision upholding the election. See SNE
Enterprises, Inc., 348 N.L.R.B. at 1042-44; Northeast Iowa
Telephone Co., 346 N.L.R.B. at 466-67; Harborside
Healthcare, Inc., 343 N.L.R.B. at 909-13.
III
Veritas also challenges some of the evidentiary rulings
that were made by the ALJ at the hearing and that were
approved by the Board. We review the ALJ’s rulings for
abuse of discretion. See Perdue Farms, Inc. v. NLRB, 144
F.3d 830, 834 (D.C. Cir. 1998). 1
1
As a technical matter, it might be argued that the Board
reviews the ALJ’s ruling for abuse of discretion, see Aladdin
Gaming, LLC, 345 N.L.R.B. 585, 587 (2005), and we review the
Board’s decision under the arbitrary and capricious standard. But
little if anything turns on the wording. The key point is this: When
an ALJ’s evidentiary ruling has been upheld by the Board, our
review is deferential.
11
Veritas complains about two of the ALJ’s evidentiary
rulings.
First, the ALJ redacted some documents and limited
certain testimony so as to prevent disclosure of the names of
registered nurses who had been in contact with the Union.
Veritas claims it would have used the names and the
communications to more fully develop the record and to test
witness credibility. The Board concluded that the ALJ’s
evidentiary rulings were not an abuse of discretion.
“It is well settled that Section 7 of the Act gives
employees the right to keep confidential their union activities,
including their attendance at union meetings.” Guess?, Inc.,
339 N.L.R.B. 432, 434 (2003) (citing 29 U.S.C. § 157). For
an employer to obtain information about confidential union
activities, “the employer’s interest in obtaining this
information must outweigh the employees’ confidentiality
interests under Section 7 of the Act.” Id. In National
Telephone Directory Corporation, for example, the Board
ruled that an employer could not seek the names of employees
who signed authorization cards or attended union meetings
because of “the potential chilling effect on union activity that
could result from employer knowledge of the information.”
319 N.L.R.B. 420, 421 (1995). That potential chilling effect
outweighed the employer’s “right to test the credibility of the
General Counsel’s witnesses” during cross-examination. Id.
Here, the ALJ protected names of nurses who attended
Union meetings or expressed views about the Union during
the Union’s organizing campaign. In light of the settled
principles protecting the confidentiality of employees’ union
activities, the Board reasonably determined that the ALJ did
not abuse her discretion in protecting the names of the
registered nurses.
12
Second, the ALJ excluded testimony about
communications between the Union and the charge nurses.
See 29 C.F.R. § 102.35(a)(4); Hovey Electric, Inc., 328
N.L.R.B. 273, 273 n.1 (1999). The ALJ “declined to receive
evidence of interactions solely between union representatives
and supervisory charge/relief charge nurses” because “such
interactions, unknown to eligible voters, could not reasonably
tend to interfere with employees’ free and uncoerced election
choice in any material way.” Veritas Health Services, Inc.,
No. 31-RC-8795, slip op. at 5 n.7 (N.L.R.B. July 7, 2010).
The ALJ’s explanation is reasonable, and the Board therefore
reasonably determined that the ALJ did not abuse her
discretion in excluding this testimony.
IV
Veritas raises one final argument: that the unfair labor
practice charge against it was untimely. A union ordinarily
must file an unfair labor practice charge within six months of
the alleged unfair labor practice. See 29 U.S.C. § 160(b).
Veritas claims that it refused to bargain with the Union on
April 14, 2010, but that the Union did not file a charge until
February 3, 2011. Veritas ignores, however, that a new
refusal to bargain constitutes a new violation of the Act. See
Bentson Contracting Co. v. NLRB, 941 F.2d 1262, 1264 n.2
(D.C. Cir. 1991). As the Board explained below, the Union
sent Veritas a letter on January 26, 2011, asking Veritas to
bargain collectively with the Union. On February 2, 2011,
Veritas refused to do so. The charge was filed the next day.
Therefore, the unfair labor practice charge was timely. See
Veritas Health Services, Inc., 356 N.L.R.B. No. 137, slip op.
at 1 n.1, 2 (Apr. 12, 2011).
13
***
We deny Veritas’s petition for review and grant the
Board’s cross-application for enforcement.
So ordered.