Case: 22-60584 Document: 83-1 Page: 1 Date Filed: 03/07/2024
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
March 7, 2024
No. 22-60584 Lyle W. Cayce
____________ Clerk
Renew Home Health, a Division of Maxus Health Care Partners,
L.L.C.,
Petitioner/Cross-Respondent,
versus
National Labor Relations Board,
Respondent/Cross-Petitioner.
______________________________
Appeal from the National Labor Relations Board
Agency No. 16-CA-260038
______________________________
Before Jones, Stewart, and Duncan, Circuit Judges.
Carl E. Stewart, Circuit Judge:
Renew Home Health (“Renew”) petitions for review of a National
Labor Relations Board (“Board”) Decision and Order determining that (1)
its RN Case Managers are not supervisors exempt from the National Labor
Relations Act (the “Act”) and that (2) Renew violated § 8(a)(1) of the Act
by: creating an impermissible oral workplace rule, threatening its employees
for exercising protected activity, interrogating staff about their concerted
activities, and unlawfully terminating an RN named Ann Bornschlegl, the
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charging party. The Board cross-applies for enforcement of its Order. For the
following reasons, both Renew’s and the Board’s petitions are DENIED in
part and GRANTED in part.
I.
Renew provides in-home nursing, therapy, and aide services across
the state of Texas. Renew operates multiple branches, including its service
branch and headquarters in Fort Worth, Texas. In 2019 and 2020, Branch
Manager Cara Thornwald oversaw Renew’s Fort Worth facility, and Chief
Operating Officer Phillip Criswell and Director of Nursing Johanna Ray also
oversaw the branch’s operations in addition to operations at Renew’s other
branches. Like many Renew employees, Criswell, Ray, and Thornwald are
experienced medical professionals. Thornwald made hiring, firing, and
discipline decisions on behalf of Renew with respect to the Fort Worth
branch. Criswell and Ray shared similar authority and duties and could
discharge employees from any Renew branch.
A.
In the Spring of 2020, Renew employed around sixty individuals in its
Fort Worth branch. Its staff contained approximately eight Home Health
Aides (“HHAs”), thirty Licensed Vocational Nurses (“LVNs”), and a
dozen Registered Nurse Case Managers (“RNs”). Bornschlegl served as an
RN in Renew’s Fort Worth branch from 2010 until her termination in April
2020. According to employee records, Bornschlegl was an exemplary
employee as an RN but often expressed sharp criticism of Renew’s
leadership.
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One stark example occurred during an August 2019 training session
with Renew’s quality assurance (“QA”) department. Bornschlegl made
comments critical of Renew’s operations and leadership structure in
response to a solicitation for questions. Penny Rivera, the head of the QA
department and coordinator of the training session, testified that
Bornschlegl’s critique “was basically that if they would pay the LVNs more
money, they could get rid of the QA department, and then they could use the
QA salaries for the payment of the LVNs.” Rivera reported Bornschlegl to
Criswell and Ray because she perceived that the comment was disruptive.
Renew’s leadership then met with Bornschlegl and told her that while she
had “a right to bring concerns about the fact that the LVNs are doing too
many visits . . . you just don’t do that kind of thing in” a training setting.
Renew placed Bornschlegl on an individualized discipline plan (the
“August 2019 discipline plan”) that required her to “bring any grievances
she is harboring to her supervisor for resolution and avoid discussing her
grievances with her coworkers.” The plan warned that failure to comply may
result in termination. Bornschlegl’s discipline plan was only viewed by
Criswell, Ray, and Renew’s HR Manager, and Bornschlegl did not share the
details of the plan with any other employee.
B.
In every branch, Renew holds a weekly case conference to discuss
patient status. After the onset of COVID-19, Renew held the weekly
meetings via videoconference because it restricted field staff access to its
offices. On April 15, 2020, Renew announced that all field staff were required
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to treat COVID-19 patients and that they would receive an additional $10
payment for each patient. On April 16, 2020, Thornwald led a call with
employees to discuss patient information and the new COVID-19 policies.
The discussion around the policies quickly became heated.
On the call, Bornschlegl and other employees inquired about personal
protective equipment (“PPE”) stock, risk compensation, forming a
dedicated team to treat COVID-19 patients, and lost wages due to the field
staff restrictions at assisted-living facilities. Several employees on the call
were unsatisfied with Renew’s policies and Thornwald’s responses to their
questions. Ultimately, Thornwald disconnected from the call while
Bornschlegl was asking her a question on these issues. That same day,
Bornschlegl reached out to Thornwald with more questions via instant
message. Thornwald informed Bornschlegl that they should “try to work
together as a team to encourage each other thru [sic] rather than create a
disruption.” At the close of their conversation, Thornwald texted
Bornschlegl that “I appreciate your ideas/questions, just please bring them
individually in order to avoid creating a morale problem.”
Thornwald’s responses to other concerned employees relayed a more
upbeat tone regarding the circumstances. For instance, Thornwald said to
another employee that she “totally understand[s] your concerns/fears! But
we can not [sic] be getting everyone all worked up in a negative way like
happened on that call. We need to work as a team to pull together to get thru
[sic] this hard time . . . hang in there and keep providing the good care you do
to your patients.”
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C.
In late April 2020, Bornschlegl began talking with fellow Renew
employees about Renew’s COVID-19 policies, insufficient hazard pay, and
concerns over accessing assisted-living facilities. The employees agreed in a
group text to reach out to leadership about these issues. Bornschlegl
volunteered to relay the group’s concerns in a signed Kmail message 1 to
management (the “Kmail”). Bornschlegl’s Kmail included the signatures of
the dozen employees in the group text and asserted that it was a “group
effort” to outline COVID-19 policy related concerns. However, the Kmail
erroneously included one employee who did not expressly agree to sign with
the cohort, Gina Anderton. When Renew questioned Anderton about her
knowledge of the Kmail, Anderton informed Renew that she had not agreed
to sign it. In actuality, Anderton’s message, which stated that she was not
interested in signing the draft, was not delivered to Bornschlegl.
Renew then inquired with individual employees as to the basis of their
signature of the group message and to what “threats of disciplinary actions
and terminations that were alluded to in the last line of communication.”
Thornwald reached out to each employee on the signed message via Kmail
and asked whether they fully agreed with the terminology and verbiage in
Bornschlegl’s Kmail.
_____________________
1
Kmail is Renew’s internal communications system.
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D.
On April 28, 2020, Renew’s management again met with Bornschlegl.
Criswell, Ray, and Thornwald asked for further clarification regarding the
employees’ coordination before drafting the Kmail. Bornschlegl stated that
they had formed a group text to discuss the policies. Bornschlegl asked if
discussing workplace grievances with her coworkers was prohibited and Ray
responded that Bornschlegl’s August 2019 discipline plan provides “that if
[she had] any grievances, that we would need for you to come to us and take
those up with us.”
Criswell then began discussing each of the points raised in the group
Kmail. He then raised the issue that Bornschlegl did not have Anderton’s
permission to sign her name, and Bornschlegl contended that she did not
realize that Anderton objected to her inclusion in the message. Renew’s
leadership theorized that the mix-up may be sufficient grounds to constitute
discipline under Renew’s falsification policy for signing Anderton’s name
without her consent. 2 Ray informed Bornschlegl that her actions violated her
August 2019 discipline plan. Ray then read the plan’s requirements section,
which mandated that Bornschlegl not discuss grievances with her coworkers.
Criswell then discharged Bornschlegl for violating Renew’s falsification
policy and the August 2019 discipline plan.
_____________________
2
Prior records indicate that employees previously punished or discharged under
the falsification policy were penalized for falsifying client records or official business
records. Examples included recording visits or procedures on patients that did not occur.
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Bornschlegl then filed a charge with the Board and, after investigation,
the Board’s General Counsel filed a complaint against Renew. The complaint
alleged that Renew violated § 8(a)(1) on several counts for the conduct
described above. Following a four-day hearing, an administrative law judge
(“ALJ”) determined that Renew violated § 8(a)(1) as alleged by the Board’s
general counsel. Renew filed its objections to the ALJ’s determinations and
the Board subsequently affirmed the ALJ’s order. Renew then filed the
instant petition with this court. The Board cross-appealed for enforcement
of its Order.
II.
We will affirm the Board’s findings of fact if they are supported by
substantial evidence in the record considered as a whole. UNF W., Inc. v.
NLRB, 844 F.3d 451, 456 (5th Cir. 2016). We have defined substantial
evidence as “that which is relevant and sufficient for a reasonable mind to
accept as adequate to support a conclusion. It is more than a mere scintilla,
and less than a preponderance.” El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656
(5th Cir. 2012). While the reviewing court must consider evidence that
detracts from the Board’s findings, the ALJ’s decision will stand “if a
reasonable person could have found what the ALJ found,” even if this court
may have reached a different conclusion had the matter been presented to it
in the first instance. Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th
Cir. 1988). The ALJ’s credibility determinations are binding on this court
“unless one of the following factors exists: (1) the credibility choice is
unreasonable, (2) the choice contradicts other findings, (3) the choice is
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based upon inadequate reasons or no reason, or (4) the ALJ failed to justify
his choice.” Asarco, Inc. v. NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996). We
review challenges to the Board’s legal conclusions de novo and its procedural
and evidentiary determinations for abuse of discretion. Id.; Marathon
LeTourneau Co. v. NLRB, 699 F.2d 248, 254 (5th Cir. 1983). Likewise, we
review the Board’s conclusions of supervisory status for support by
substantial evidence in the record as a whole. See Poly-America, Inc. v. NLRB,
260 F.3d 465, 479–80 (5th Cir. 2001).
III.
Renew challenges the Board’s determinations that Renew’s RNs are
not supervisors under § 2(11) of the Act and that it violated § 8(a)(1) on four
counts for its conduct in the Spring of 2020. As a threshold question, we first
address the issue of whether Renew’s RNs have supervisory authority. 3
A. Statutory Supervisor
Section 2(11) of the Act defines a “supervisor” as:
any individual having authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
_____________________
3
Persons who are supervisors are not protected by the Act. 29 U.S.C. § 152(3);
NLRB v. Ky. River Cmty. Care, 532 U.S. 706, 711 (2001) (“Supervisors would fall within
the class of employees [protected under the Act], were they not expressly excepted from
it.”).
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29 U.S.C. § 152(11). The Supreme Court has interpreted § 2(11) to establish
a three-part test:
Employees are statutory supervisors if (1) they hold the
authority to engage in any 1 of the 12 listed supervisory
functions, (2) their “exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment,” and (3) their authority is held “in the
interest of the employer.”
Ky. River Cmty. Care, 532 U.S. at 713. “Whether an employee is a supervisor
is a question of fact.” STP Nuclear Operating Co. v. NLRB, 975 F.3d 507, 513
(5th Cir. 2020). The party asserting supervisory status carries the burden of
proof. Entergy Miss., Inc. v. NLRB, 810 F.3d 287, 295 (5th Cir. 2015).
On appeal, Renew argues that the Board ignored substantial evidence
in the record that demonstrated that its RNs are supervisors under the Act.
Renew asserts that its RNs have the authority to assign work, discipline
employees, recommend hires, and address grievances of LVNs and HHAs.
It points out that Criswell testified to the RNs’ authority at the administrative
hearing before the ALJ. Renew further contends that secondary indicia of
authority, including the job description, organizational structure, and
provisions of the Texas state regulations governing RNs suggest that they are
supervisors.
Here, we conclude that Renew has failed to satisfy its burden. Its RNs
serve in mostly reportorial roles in its patient intake and care system. For
instance, the RNs cannot assign staff to patients but rather must request the
staff, subject to management’s approval. The RNs can only recommend
discipline or suspension of other employees and cannot resolve grievances of
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LVNs or HHAs on their own—rather, they must request management to
transfer the staff member to another patient. They cannot independently hire
or terminate individuals, as those decisions rest with the branch managers
and other senior leadership at Renew. At best, the RNs’ exercise of any
supervisory function is limited to a purely clerical or reportorial nature,
which is insufficient to establish supervisory status. See Ky. River Cmty. Care,
523 U.S. at 713.
Thus, we conclude that the Board’s determination that Renew’s RNs
are not supervisors under the Act is supported by substantial evidence. See
El Paso Elec. Co., 681 F.3d at 656. The ALJ appropriately discounted
Criswell’s and Thornwald’s testimony that RNs had authority to discipline
LVNs and HHAs because the “statements were wholly uncorroborated” by
any “testimony of RNs who actually disciplined LVNs and HHAs and/or by
documents memorializing such discipline.” In line with its precedent, the
Board rejected Renew’s argument that state and federal regulations
demonstrated that Renew’s RNs had authority to supervise the unlicensed
HHAs because “statutory schemes other than the NLRA cannot in and of
themselves establish supervisory status under the NLRA.” Pain Relief Ctrs.,
P.A., Case 10-CA-260563, 2022 WL 580717, at *1 (N.L.R.B. 2022). The
Board further held that the record was insufficient to show that the
regulations applied to Renew’s RNs. Therefore, we grant the Board’s
petition for enforcement as to this determination and continue to discuss the
Board’s holding that Renew violated § 8(a)(1).
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B. Unfair Labor Practices
Section 7 of the Act provides employees the “right to self-
organization, to form, join, or assist labor organizations, [and] to bargain
collectively,” as well as “engage in other concerted activities for the purpose
of . . . mutual aid or protection.” 29 U.S.C. § 157. The Supreme Court has
made clear that § 7 applies to non-union employees because they must
“speak for themselves as best they c[an]” without representation in the
bargaining process. NLRB v. Wash. Aluminum Co., 370 U.S. 9, 14 (1962).
Section 8(a)(1) of the Act protects employees exercising their rights to
organize themselves from unfair labor practices that chill this behavior. 29
U.S.C. § 158(a)(1). Here, the Board held that Renew conducted the following
unfair labor practices: (1) maintaining an impermissible oral workplace rule,
(2) threatening economic reprisals for engaging in concerted activity, (3)
interrogating employees about concerted activity, and (4) unlawfully
terminating an employee for engaging in protected activity. We address each
determination in turn below.
i. Oral Workplace Rule
An employer violates § 8(a)(1) when it institutes a workplace rule that
forbids or discourages its employees from engaging in concerted conduct. See
Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 208–09 (5th Cir. 2014)
(holding that a workplace rule preventing employees from discussing wage
information violates § 8(a)(1)). To determine whether a rule violates the Act,
a court must decide whether the employer’s rule regulating workplace
conduct chills a reasonable employee’s exercise of their § 7 rights. T-Mobile
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USA, Inc. v. NLRB, 865 F.3d 265, 270 (5th Cir. 2017). Precedent established
by the Board and this court demonstrates that a rule must be communicated
to multiple employees to constitute a § 8(a)(1) violation. See, e.g., St. Mary’s
Hosp. of Blue Springs, 346 NLRB 776, 776–77 (2006) (determining that a
supervisor’s reprimand of one employee does not constitute a workplace
rule).
Here, the Board determined that Renew maintained an impermissible
workplace rule beginning in 2019 that “effectively bar[red] employees from
discussing wages and workplace conditions amongst themselves.” The
Board held that Renew applied the rule in the August 2019 discipline plan
when it “threaten[ed] Bornschlegl with further disciplinary action” if she
continued to discuss workplace matters with her co-workers. It further stated
that Renew’s leadership enforced the rule after the April 16, 2020
videoconference by directing her to bring any workplace grievances to
management because Renew’s leadership “consider[ed] such behaviors . . .
as an attempt to create a culture of discord or hostile work environment.”
The Board ascertained that “Renew again employed the rule when it fired
Bornschlegl for failing to comply with her August 2019 discipline” plan.
Ultimately, the Board concluded by holding that Bornschlegl’s discipline
could be reasonably construed as an unlawfully maintained workplace rule
that prohibited protected conduct under the Act.
Our review, however, indicates that this holding contravenes Board
precedent. The Board has consistently held that an employer’s policy is only
a workplace rule if it is communicated to more than one employee or
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otherwise conveyed with instructions to disseminate the policy to other
employees. See, e.g., Flamingo Las Vegas Operating Co., 360 NLRB 243, 243
(2014) (“[W]e do not find that the [employer] promulgated a rule because
[the supervisor] directed his statements solely at [one employee] and they
were never repeated to any other employee as a general requirement.”). In
its decision, the Board cited Teachers AFT New Mexico and briefly concluded
that Bornschlegl’s discipline could “reasonably be construed as establishing
a new rule or policy for all employees.”. In Teachers AFT New Mexico, the
Board reversed the ALJ’s determination that several statements made
relative to a union election could be reasonably interpreted as a new
workplace rule because “[t]he record fail[ed] to show that these statements
. . . were communicated to any other employees or would reasonably be
construed as establishing a new rule or policy for all employees.” 360 NLRB
at 438 n.3.
The Board thus failed to apply its controlling case law in holding that
Renew maintained an impermissible workplace rule. Furthermore, none of
the authority the ALJ cited in support of this determination involved a policy
articulated to just one employee. Cf. AFSCME Local No. 5, 364 NLRB 837,
838–39 (2016) (declaring that a workplace rule issued in “a memorandum to
all employees” violated § 8(a)(1)). The record confirms that Bornschlegl did
not discuss the substance of her August 2019 discipline plan with other
employees. Thus, we conclude that the Board’s determination regarding the
oral workplace rule lacks sufficient evidence in the record. We therefore deny
enforcement of the Board’s Order as to its oral workplace rule holding.
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ii. Impermissible Threat
We have held that an employer violates § 8(a)(1) where “under the
totality of the circumstances . . . an employee could reasonably conclude that
the employer is threatening economic reprisals if the employee supports”
protected conduct. Brown & Root, Inc. v. NLRB, 333 F.3d 628, 634 n.3 (5th
Cir. 2003). However, an employer does not violate § 8(a)(1) by the
“expressing of any views, argument, or opinion . . . if such expression
contains no threat of reprisal or force or promise of benefit.” 29 U.S.C.
§ 158(c). “The test for determining ‘whether an employer has violated
Section 8(a)(1) is whether the employer’s questions, threats or statements
tend to be coercive, not whether the employees are in fact coerced.’” Id.
(quoting NLRB v. PNEU Elec., Inc., 309 F.3d 843, 850 (5th Cir. 2002)). The
analysis is framed from the perspective of the employee and is not contingent
on “either the motivation behind the remark or its actual effect.” Miller Elec.
Pump & Plumbing, 334 NLRB 824, 824 (2001).
Here, the Board determined that “Thornwald’s April 16 text message
to Bornschlegl” was a threat that violated § 8(a)(1). In the text message,
Thornwald said that the April 2020 telephone conference had gotten “a bit
out of hand with negativity” and instructed Bornschlegl to raise any concerns
to management “individually in order to avoid creating a morale problem.”
The Board stated that “[a] reasonable employee would understand the
message as a threat of discipline or other consequences if she continued to
discuss workplace concerns with her coworkers.” Thus, it concluded that the
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text message “threaten[ed] Bornschlegl with discipline if she discussed work
matters with her fellow employees.”
In its petition, Renew argues that Thornwald’s message, viewed in
context, was supportive and not a threat. It asserts that Thornwald sent this
text in response to Bornschlegl’s inquiries following the chaotic April 16,
2020 videoconference call. It further contends that the text could not have
been interpreted as coercive or intimidating because Bornschlegl “openly
discussed workplace issues with her co-workers after receiving” the message.
Although the fact that Bornschlegl continued to discuss workplace
issues with her co-workers after receiving the alleged threat is irrelevant
under our jurisprudence, 4 the ALJ’s determination on this issue is far more
conclusory as compared to his other holdings. Our deferential standard of
review applies only when the Board engages in reasoned decision-making. See
Motor Vehicle Mfgs. Ass’n v. State Farm Mut. Auto. Inc. Co., 463 U.S. 29, 43
(1983); see also Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638–39 (D.C.
Cir. 2017). Without sufficient analysis, the Board’s conclusory holding—
that the text message could have been perceived to reference discipline or
termination if she engaged in protected conduct—cannot be evaluated for its
plausibility. Cf. Standard Fittings Co., 845 F.2d at 1314 (holding that an ALJ’s
decision will stand “if a reasonable person could have found what the ALJ
found”). We thus conclude that the Board’s impermissible threat
determination is not supported by substantial evidence and not entitled to
_____________________
4
See Brown & Root, Inc., 333 F.3d at 634 & n.3.
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deference. Consequently, we will not enforce the Board’s order as to the
threat issue.
iii. Coercive Interrogation
The Act prohibits employers from interrogating employees about
their concerted activities if the questioning tends to coerce employees to
refrain from exercising their rights under § 7 of the Act. See UNF W., Inc.,
844 F.3d at 461. To determine whether an interaction between an employer
and employee constitutes a coercive interrogation, we examine “the totality
of the circumstances in which the interrogation occurred.” NLRB v. Laredo
Coca Cola Bottling Co., 613 F.2d 1338, 1342 (5th Cir. 1980). Importantly, the
analysis “is whether the questioning tends to be coercive, not whether the
employees are in fact coerced.” NLRB v. Varo, Inc., 425 F.2d 293, 298 (5th
Cir. 1970). We consider the eight factors established in Bourne v. NLRB, 332
F.2d 47, 49 (2d Cir. 1964), when analyzing a coercive interrogation charge.
UNF W., Inc., 844 F.3d at 461. The factors are:
(1) the background, or history of employer hostility and
discrimination; (2) the nature of the information the questioner
seeks; (3) the rank of the questioner in the company hierarchy;
(4) the place and manner of the interrogation; (5) the
truthfulness of the employee’s reply; (6) whether the employer
had a valid purpose in obtaining the information sought about
the union; (7) whether a valid purpose, if existent, was
communicated to the employee; and (8) whether the employer
assured the employee that no reprisals would be forthcoming
should he or she support the union.
Id. We have found that these factors are “not a mandate for formalistic
analysis,” but function as “analytical guiding lights” in our inquiry. Id. We
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further have stated that “[n]o single factor is determinative and coercive
interrogation may still be found” even if the factors weigh in the employer’s
favor. Tellepsen Pipeline Servs. Co. v. NLRB, 320 F.3d 554, 561 (5th Cir. 2003)
(internal quotation omitted). Lastly, the Board is not required to apply each
factor to each claim. UNF W., Inc., 844 F.3d at 461–62.
The alleged violation occurred when Thornwald and Ray reached out
to each employee named in the Kmail message to ask if they “were aware of
the verbiage used” by Bornschlegl. Furthermore, the Board concluded that
Ray’s request to review the group text messages that led to the group Kmail
at Bornschlegl’s termination meeting violated § 8(a)(1) of the Act. The ALJ
determined that, based on the totality of the circumstances, Thornwald’s and
Ray’s authority to discipline and terminate employees—in conjunction with
the tenor of their inquest into the employees’ protected communications—
crossed the line into coercive questioning. The Board affirmed the ALJ’s
conclusion because it agreed that while asking the employees if they had
authorized Bornschlegl to list their names in the Kmail was a legitimate
question, Renew’s request to see the group text messages was nevertheless
an unlawful attempt to chill or intrude on the employees’ exercise of their § 7
rights to discuss workplace conditions.
Renew argues that the Board erred by using the five-factor test laid out
by the Board in Westwood Healthcare Ctr., 330 NLRB 935, 939 (2001) instead
of the eight-factor Bourne test. Fiber Glass Sys., Inc. v. NLRB, 807 F.2d 461,
463 (5th Cir. 1987) (adopting Bourne factors). Renew further asserts that the
Board incorrectly applied the law to the facts of this case in determining that
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Renew historically treated Bornschlegl with hostility, that Ray’s texts were
not seeking generalized information, and that Renew’s investigation went
beyond permissible bounds. Renew also points to several cases where we
have admonished the Board for incorrectly applying the Bourne factors to
invalidate the Board’s reliance on Westwood.
We again hold that Renew’s arguments are unpersuasive. First, we do
not require the Board to apply all eight Bourne factors. UNF W., Inc., 844
F.3d at 461. Renew concedes that the Board applied the five Westwood factors
to determine that it unlawfully interrogated its employees. Renew further
recognizes that the Westwood factors are functionally the same as the first five
Bourne factors. Furthermore, this court has only admonished the Board for
holding that a § 8(a)(1) violation occurred without applying any of the factors
or setting forth any bases for its determination that a coercive interrogation
occurred. Renew’s assertion that the Board ignored several factors is
unsupported by the record. For instance, the Board determined that Renew’s
April 27, 2020 Kmail inquiry was not part of a valid investigation because it
asked for protected information, which is the sixth Bourne factor. Thus, we
hold that the Board’s determinations that Renew unlawfully interrogated its
employees are owed deference. See Brookwood Furniture, 701 F.2d at 464.
iv. Unlawful Discharge
In reviewing an alleged § 8(a)(1) violation based on the unlawful
termination of an employee, we apply the framework established by the
Board in Wright Line, 251 NLRB 1083 (1980). New Orleans Cold Storage &
Warehouse Co. v. NLRB, 201 F.3d 592, 600–01 (5th Cir. 2000). This
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framework provides that “an employer’s termination of an employee violates
Section 8(a)(1) if the employee’s protected conduct was a motivating factor
in the decision to discharge the employee.” Cordua Rests. Inc. v. NLRB, 985
F.3d 415, 423 (5th Cir. 2021). The employee’s protected activity must be at
least “a substantial or motivating factor,” but need not be “the sole
motivating factor.” Id. (quoting Adams & Assocs., Inc. v. NLRB, 871 F.3d 358,
370 (5th Cir. 2017)). Where “the record does permit a competing, perhaps
even equal, inference of a legitimate basis for discipline [or termination], the
Board could reasonably infer an improper motivation.” NLRB v. McCullough
Env’t Servs., Inc., 5 F.3d 923, 937 (5th Cir. 1993). Because motive is a fact
question, we will not “lightly displace the Board’s factual finding of
discriminatory intent.” Brookwood Furniture, 701 F.2d at 464.
Rather, courts afford “special deference” to the Board’s holding
“where, as here, conflicting evidence require[d] that essential credibility
determinations be made.” Id. The Board may rely on circumstantial evidence
to infer that an employee’s protected activity was a motivating factor in an
employer’s decision to terminate the employee. Elec. Data Sys. Corp. v.
NLRB, 985 F.2d 801, 804–05 (5th Cir. 1993). This requires the employer to
prove “as an affirmative defense, that the employer would have fired the
employee even if the employee had not engaged in the protected activities”
to avoid liability. Cordua Rests., 985 F.3d at 423–24 (citing NLRB v. Delta
Gas, Inc., 840 F.2d 309, 313 (5th Cir. 1988)).
Renew argues that there was no evidence of animus against
Bornschlegl in its questioning or investigation. It further asserted that it
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No. 22-60584
would have fired Bornschlegl under its falsification policy regardless of
whether she had engaged in protected conduct because it fired every
employee that falsified client documents in violation of the policy. Renew
further contends that the Board improperly distinguished Bornschlegl’s
termination for falsification from the previous instances of termination.
Once again, Renew misses the mark. The Board’s factual
determination of discriminatory intent is owed special deference. Brookwood
Furniture, 701 F.2d at 464. The Board determined that Renew unlawfully
terminated Bornschlegl based on her involvement in protected activity and
that Renew’s alleged justification for her termination was pretextual. In
accordance with our precedent, the Board accepted the ALJ’s credibility
determinations based on conflicting evidence and testimony and held that
discriminatory intent was present. See Brookwood Furniture, 701 F.2d at 464.
The Board further rejected Renew’s arguments that it would have
terminated Bornschlegl for violating the falsification policy because the
previous employees terminated under that policy had falsified timecards or
visit logs rather than merely signing another employee’s name to an internal
email. Thus, the Board relied on sufficient evidence to determine that
Bornschlegl’s protected activity was at least a motivating factor in her
termination. We therefore grant the Board’s petition for enforcement as to
its unlawful termination holding.
IV.
In sum, we hold that the Board’s determination that Renew’s RNs are
not statutory supervisors under the Act is supported by substantial evidence.
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We further conclude that the Board’s determinations that Renew violated
§ 8(a)(1) by conducting coercive investigations and unlawfully terminating
Bornschlegl are also supported by substantial evidence. However, we hold
that the Board’s holdings that Renew violated § 8(a)(1) of the Act by issuing
an impermissible oral workplace rule and by threatening Bornschlegl are not
supported by substantial evidence considering existing Board precedent.
Therefore, Renew’s petition is GRANTED in part as to the Board’s
holdings that Renew instituted an impermissible oral workplace rule and
impermissibly threatened Bornschlegl and DENIED in all other respects.
The Board’s cross-petition for enforcement is correspondingly DENIED in
part and GRANTED in part.
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