United States Court of Appeals For the First Circuit
No. 20-1589
NATIONAL LABOR RELATIONS BOARD,
Petitioner, Cross-Respondent,
v.
MAINE COAST REGIONAL HEALTH FACILITIES, d/b/a Maine Coast Memorial Hospital, the sole member of which is Eastern Maine Healthcare Systems,
Respondent, Cross-Petitioner.
APPLICATION FOR ENFORCEMENT OF ORDER OF THE NATIONAL LABOR RELATIONS BOARD AND CROSS-PETITION FOR REVIEW
Before
Kayatta and Barron, Circuit Judges, and Smith, District Judge.
Eric Weitz, Attorney, National Labor Relations Board, with whom Kira Dellinger Vol, Supervisory Attorney, Peter B. Robb, General Counsel, Alice B. Stock, Deputy General Counsel, Ruth E. Burdick, Acting Deputy Associate General Counsel, and David Habenstreit, Assistant General Counsel, were on brief, for petitioner, cross-respondent. Joshua A. Randlett, with whom Brent A. Singer and Rudman Winchell were on brief, for respondent, cross-petitioner.
Of the District of Rhode Island, sitting by designation. May 26, 2021 SMITH, District Judge. We review a decision and order
of the National Labor Relations Board ("Board" or "NLRB"), which
concluded that Maine Coast Regional Health Facilities, d/b/a Maine
Coast Memorial Hospital, the sole member of which is Eastern Maine
Healthcare Systems ("MCMH"), violated federal labor laws by firing
an employee for a letter she wrote to the editor of a local
newspaper. The Board also determined that MCMH committed a
separate violation by maintaining a media policy prohibiting
contact between employees and the media. We affirm those
conclusions. However, we agree with MCMH that the Board improperly
extended its remedy to MCMH's parent corporation, Eastern Maine
Healthcare Systems ("EMHS"), which was not a party to the
proceeding. Thus, we grant the Board's application for
enforcement, striking from the order the portions of the remedy
requiring repudiation notices to be posted at locations other than
MCMH.
I. Background
In 2015, in response to ongoing operating losses, MCMH
reorganized with EMHS as its sole corporate member. EMHS is a
healthcare network that maintains similar relationships with
several other hospitals in Maine. As part of the merger, EMHS
installed its own employees in various management positions at
- 3 - Following the merger, MCMH cancelled the contracts of
most physicians at the hospital, discharging some and forcing the
remaining physicians to renegotiate their contracts, leading many
to resign in protest. Around the same time, concerns about nurse
staffing levels led to a new collective bargaining agreement with
the nurses' union. Despite the new agreement, understaffing caused
by MCMH's failure to replace departing nurses remained a problem
for union members and others. Although they did not file formal
grievances, the nurses protested by placing a sticky note on the
locker of each departed nurse. Additionally, in 2017, leadership
from the union presented a petition, signed by over sixty
employees, to management. The petition bemoaned a lack of
staffing, criticized the administration for inadequately
supporting nurses, and demanded specific changes to achieve
compliance with the nurses' contract and to address understaffing.
Karen-Jo Young, an activities coordinator in the
rehabilitation area of the hospital, became aware of the concerns
of the nurses' union and the physicians. She was present for
conversations among nurses, physicians, and other staff regarding
the effects of the physicians' departures and the nurses'
understaffing. She also observed the sticky note locker protest.
Moreover, she felt the effects of the understaffing ripple over to
her work because her job involved helping with nursing activities.
Finally, she read articles and letters to the editor in the
- 4 - Ellsworth American, a local newspaper, discussing the labor
disputes. One article described the nurses' petition and stated
that, according to a nurses' union steward, the union had tried to
follow the proper grievance procedures prior to submitting the
petition.
Young submitted a letter to the editor of the Ellsworth
American. In her letter, she referenced the previous newspaper
pieces and expressed support for the nurses and doctors in their
respective labor disputes. She applauded the nurses for submitting
their petition, urged management to heed the nurses' staffing
demands, and opined that they were rightly concerned about risks
to patient safety posed by understaffing. She also criticized
management as unduly allegiant to EMHS and out of touch with
patient care, arguing that these shortcomings negatively affected
hospital staff and the local community. Young did not discuss her
letter with any other employee prior to submitting it.
Throughout these events, MCMH maintained the following
media policy, which EMHS had instituted at all of its subsidiaries:
No EMHS employee may contact or release to news media information about EMHS, its member organizations or their subsidiaries without the direct involvement of the EMHS Community Relations Department or of the chief operating officer responsible for that organization. Any employee receiving an inquiry from the media will direct that inquiry to the EMHS Community Relations Department, or Community Relations staff at that organization for appropriate handling.
- 5 - Just hours after Young's letter was published, MCMH terminated her
employment, citing the media policy. Prior to Young's discharge,
no employee had ever been disciplined for violating EMHS's media
policy. EMHS later revised the policy, adding a "savings clause"
stating that the prohibition against contact with the media did
not apply to communications "concerning a labor dispute or other
concerted communications for the purpose of mutual aid or
protection protected by the National Labor Relations Act."
General Counsel for the Board brought charges on behalf
of Young. In the complaint, the respondent was named Maine Coast
Regional Health Facilities, d/b/a Maine Coast Memorial Hospital.
Partway through trial before the Administrative Law Judge ("ALJ"),
though, the General Counsel requested a revision of the name in
the complaint, citing a desire to enforce remedial measures at
other EMHS locations. Following an off-the-record discussion
between the parties, MCMH consented to revising the name to Maine
Coast Regional Health Facilities, d/b/a Maine Coast Memorial
Hospital, the sole member of which is Eastern Maine Healthcare
Systems.
The ALJ found that MCMH made the decision to fire Young
based solely on the letter,1 and furthermore, that the letter was
1 The ALJ noted that, although management became aware that Young had previously been subject to discipline for communications to the board of directors regarding employee dissatisfaction prior
- 6 - concerted activity protected by Section 7 of the National Labor
Relations Act ("NLRA" or "Act"), 29 U.S.C. § 157, as well as union
activity protected by Section 8(a)(3) of the Act, id. § 158(a)(3).
Therefore, the ALJ concluded that Young's termination violated
Sections 8(a)(1) and 8(a)(3) of the Act, id. § 158(a)(1), (3).
The ALJ further held that MCMH's maintenance of the original media
policy constituted an independent violation of Section 8(a)(1),
and that the newly minted savings clause did not cure its
unlawfulness. On review, the Board affirmed the ALJ's decision
with one exception. Unlike the ALJ, the Board concluded that the
addition of the savings clause did cure the unlawfulness of the
original media policy. Accordingly, the Board ordered MCMH to
reinstate Young with back pay, cease and desist from violating
employees' labor rights, and post notices repudiating the previous
media policy at all EMHS facilities where it had been in place.
The Board then filed an application in this court for enforcement,
and MCMH cross-petitioned for review.
II. Standard of Review
We review a decision of the Board for "mistakes of law,
lack of substantial evidence to support factual findings, and
to terminating her employment, the decision to discharge was finalized before management gained knowledge of the previous discipline. Based on this timeline, the ALJ impliedly discredited the testimony of an MCMH executive that the discharge was based in part on the earlier disciplinary incidents.
- 7 - arbitrary or capricious reasoning." Boch Imps., Inc. v. NLRB, 826
F.3d 558, 565 (1st Cir. 2016) (quotations and citation omitted).
"Where the Board adopts the conclusions and reasoning of the ALJ,
we review the ALJ's reasoning as if it were that of the Board."
Id. "We may not substitute our judgment for the Board's when the
choice is 'between two fairly conflicting views, even though the
court would justifiably have made a different choice had the matter
been before it de novo.'" Yesterday's Child., Inc. v. NLRB, 115
F.3d 36, 44 (1st Cir. 1997) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)).
Because Congress has delegated to the Board the
authority to implement national labor policy, we give considerable
deference to the Board's interpretation of the Act so long as it
is "rational and consistent with the Act." NLRB v. Curtin Matheson
Sci., Inc., 494 U.S. 775, 786-87 (1990). We use a deferential
lens even where the Board revises or reverses its previous
interpretations of the Act, as "[t]he responsibility to adapt the
Act to changing patterns of industrial life is entrusted to the
Board." NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975).
However, "[t]he NLRB cannot depart from its own precedent unless
it articulates reasons for the departure." NLRB v. Wang Theatre,
Inc., 981 F.3d 108, 112 (1st Cir. 2020) (quoting Good Samaritan
Med. Ctr. v. NLRB, 858 F.3d 617, 640 (1st Cir. 2017)).
- 8 - On matters of fact, the Board's findings are conclusive
"if supported by substantial evidence on the record considered as
a whole." 29 U.S.C. § 160(e). A finding of substantial evidence
requires "more than a mere scintilla," and instead must be
sufficient such that "a reasonable mind might accept [it] as
adequate to support a conclusion." McGaw of P.R., Inc. v. NLRB,
135 F.3d 1, 7 (1st Cir. 1997) (quotations and citation omitted).
We give "great weight" to the ALJ's credibility determinations.
Quality Health Servs. of P.R., Inc. v. NLRB, 873 F.3d 375, 384
(1st Cir. 2017) (quotations and citation omitted).
III. Discussion
1. Whether MCMH Violated the Act
Section 7 of the Act gives employees "the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection." 29 U.S.C. § 157. These rights are protected by
Section 8, which prohibits various unfair labor practices, two of
which are at issue here. Under Section 8(a)(1), "[i]t shall be an
unfair labor practice for an employer . . . to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in" Section 7 of the Act. Id. § 158(a)(1).
Additionally, under Section 8(a)(3), it is an unfair labor practice
- 9 - for an employer "by discrimination in regard to hire or tenure of
employment . . . to encourage or discourage membership in any
labor organization." Id. § 158(a)(3).
The Board found that Young's letter writing was
concerted activity protected under Section 8(a)(1) and union
activity protected under Section 8(a)(3). The Board therefore
concluded that MCMH violated both provisions when it discharged
her for writing the letter. MCMH takes several stabs at rebuttal,
but none is fatal.
a. Concertedness
First, MCMH argues that there was insufficient evidence
to show that Young engaged in concerted activity. Although the
term "'concerted activity' plainly 'embraces the activities of
employees who have joined together in order to achieve common
goals, . . . the precise manner in which particular actions of an
individual employee must be linked to the actions of fellow
employees'" is not clear from the statutory text. NLRB v. Portland
Airport Limousine Co., 163 F.3d 662, 665 (1st Cir. 1998) (quoting
NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 830 (1984)).
The Board's prevailing test for concerted activity is
set out in Meyers Industries, Inc., 268 N.L.R.B. 493, 497 (1984)
("Meyers I"), and Meyers Industries, Inc., 281 N.L.R.B. 882, 885
(1986) ("Meyers II"). There, the Board explained that, in its
view, "generally, an activity is carried out in a 'concerted'
- 10 - manner for purposes of § 7 if it is 'engaged in with or on the
authority of other employees.'" Five Star Transp., Inc. v. NLRB,
522 F.3d 46, 51 (1st Cir. 2008) (quoting Meyers I, 268 N.L.R.B.
at 497). However, the Board allowed that concerted activity can
also include "conduct engaged in by a single employee." Meyers
II, 281 N.L.R.B. at 885. For instance, concerted activity extends
to individual actions "seek[ing] to initiate or to induce or to
prepare for group action, as well as individual employees bringing
truly group complaints to the attention of management." Id.
at 887; see also id. (noting that "concerted activity" could cover
"a myriad of [other] factual situations"). Notwithstanding the
above-quoted language from Meyers I –- "on the authority of other
employees" -- there is no requirement that concerted actions be
"specifically authorized" by others. Meyers II, 281 N.L.R.B.
at 886. Thus, "[t]he critical inquiry is not whether an employee
acted individually, but rather whether the employee's actions were
in furtherance of a group concern." Five Star Transp., 522 F.3d
at 51 (citing Meyers II, 281 N.L.R.B. at 887).
The history behind the Meyers decisions is worth noting.
In Alleluia Cushion Co., 221 N.L.R.B. 999 (1975), the Board held
that, where an individual employee raises complaints of "obvious
mutual concern," the support of other employees could be presumed,
and concertedness could thus be found even absent "outward
manifestation[s] of support" from other employees. Id. at 1000.
- 11 - Meyers I rolled back this presumption and held that a finding of
concerted activity must be based on objective evidence that the
actions arose from group activity. See 268 N.L.R.B. at 496.
While Meyers II focused on actions directed towards
management, concerted activity may also arise where employees use
"channels outside the immediate employee-employer relationship" to
air shared grievances. Eastex, Inc. v. NLRB, 437 U.S. 556, 565
(1978). Employee outreach to media outlets and governmental bodies
has thus been found to be concerted activity. See Five Star
Transp., 522 F.3d at 48-52 (affirming finding of concerted activity
where bus drivers, following meeting with union, individually sent
letters to school district raising group concerns); Allstate Ins.
Co., 332 N.L.R.B. 759, 759, 765 (2000) (finding concerted activity
where a group of employees criticized employer in magazine
interview); see also Mount Desert Island Hosp., 259 N.L.R.B. 589,
592 (1981) (finding concerted activity pre-Meyers where nurse
wrote letter to editor after discussions with other staff and
subsequently circulated a petition that was published by the
newspaper).
The Board's decision here may stand at the limits of the
Meyers cases, and arguably takes a step back towards Alleluia's
presumption of concertedness. Young was not a union member. The
alleged understaffing of nurses affected her, but only indirectly.
Most significantly, she did not discuss her plans to write a letter
- 12 - with other employees or receive any specific direction,
authorization, or even encouragement to do so.
Nonetheless, a labor dispute was being waged on multiple
fronts, including in the court of public opinion. Young knew of
these labor concerns by word of mouth and from her direct
experiences of understaffing at the hospital. Furthermore, she
had read pieces in the Ellsworth American about the dispute; one
article described the nurses' petition and included an interview
with a steward of the nurses' union.2 Although no other employee
had requested or approved Young's letter, many employees had
expressed support for the cause she championed (increased
staffing). Those employees had outwardly manifested their support
through the petition, the sticky note protest, and conversations
at the hospital. Therefore, Young acted in support of what had
already been established as a group concern. See Five Star
Transp., 522 F.3d at 51; Meyers I, 268 N.L.R.B. at 496 (providing
that outward manifestations of support can establish that an issue
Due to the hearsay contained within the newspaper articles, 2
the ALJ ruled that they were admitted only for purposes other than the truth of the matter asserted. MCMH argues that the newspaper articles thus cannot support a finding of concerted activity. However, the articles were not used to prove the existence of the labor disputes or the nurses' petition, which were established through other evidence. Rather, the articles showed how Young learned about the petition and demonstrated that public discussions regarding the labor disputes were already playing out in the newspaper.
- 13 - is of group concern). Importantly, hospital employees had utilized
the newspaper to amplify their message. So, by contributing her
voice to the newspaper platform, Young was acting with her
coworkers in a meaningful, albeit indirect, way. See Five Star
Transp., 522 F.3d at 51 (noting that concerted activity must
generally be "engaged in with or on the authority of other
employees" (quotations and citation omitted)). Section 7 protects
employees' rights to "assist labor organizations . . . and to
engage in other concerted activities," 29 U.S.C. § 157, and the
Board reasonably concluded under its precedent that Young's letter
fell within that provision's coverage. While the facts here may
be at the edge of the Board's definition of concerted activity
from Meyers I and Meyers II, we conclude that the evidence was
substantial enough to support the Board's finding.3
b. Mixed Motive
MCMH next contends that, even if Young's letter writing
is deemed a concerted activity, the case should be remanded for
application of the mixed-motive test from Wright Line, a Division
3 In addition to its findings regarding the unlawfulness of Young's termination, the Board also declared that MCMH's original media policy, irrespective of Young's termination, violated Section 8(a)(1). MCMH contends that if this court overturns the finding of concerted activity, the court should consequently determine that the original media policy was lawful. Because we affirm the finding that Young's letter writing was a concerted activity, we need not address this argument.
- 14 - of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced on other
grounds, 662 F.2d 899 (1st Cir. 1981), approved in NLRB v. Transp.
Mgmt. Corp., 462 U.S. 393 (1983). In support, MCMH points to a
recent Board decision expanding the applicability of the Wright
Line inquiry. See Gen. Motors LLC, 369 N.L.R.B. No. 127, 2020 WL
4193017, at *1-2 (July 21, 2020).
Under the Wright Line test, for mixed-motive cases the
General Counsel must first "make a prima facie showing 'that the
employee's conduct protected by § 7 was a substantial or a
motivating factor in the discharge.'" Good Samaritan Med. Ctr.,
858 F.3d at 631 (quoting Transp. Mgmt., 462 U.S. at 399-400). If
the General Counsel makes this showing, the employer may
nonetheless avoid liability by rebutting the prima facie case or
by proving that the employer would have discharged the employee,
even absent the protected conduct, based on other, unprotected
conduct. Id. (citing Transp. Mgmt., 462 U.S. at 400).
However, Wright Line is inapplicable where an employee's
discharge is based upon a single act. See Five Star Transp., Inc.,
349 N.L.R.B. 42, 46 n.8 (2007) (holding that where employer made
hiring decisions based on letters to school committee, "the only
issue presented is whether the letters constituted protected
conduct"); Am. Steel Erectors, Inc., 339 N.L.R.B. 1315, 1316 (2003)
(explaining that "Wright Line analysis [is] unnecessary in [a]
single-motive case"); Phx. Transit Sys., 337 N.L.R.B. 510, 510
- 15 - (2002) (holding Wright Line inapplicable where employer discharged
employee "because of the articles he wrote in the union
newsletter," which "constituted protected concerted activity");
Nor-Cal Beverage Co., 330 N.L.R.B. 610, 612 (2000) (holding that
"Respondent can rely on no independent motive" where the reason
for discharge was a protected activity). Here, MCMH decided to
discharge Young solely because of the letter, so Wright Line does
not apply.
MCMH objects to the conclusion that Young was discharged
because of her concerted activity, as it contends that she was not
fired for the statements in her letter that involve the physician
contracts, nurse staffing, or the union. Instead of sorting the
statements in the letter into two baskets (protected and
unprotected) and using the Wright Line test to determine which
basket contained the true impetus for termination, the ALJ quite
pragmatically treated Young's letter as a single act. As the ALJ
concluded, the statements the hospital points to -- "those about
management being out-of-touch and the chairwoman's allegiance to
management" -- are directly tied to her ultimate argument for more
staffing. Me. Coast Reg'l Health Facilities, 369 N.L.R.B. No. 51,
slip op. at *16 n.14 (Mar. 30, 2020). Therefore, even under a
piecemeal approach in which the letter is parsed sentence by
sentence, all of the statements the hospital has identified are
concerted activity. Moreover, to the extent that MCMH means to
- 16 - contend that Young was terminated for damaging its reputation as
opposed to for opining on the labor dispute, the ALJ concluded
that the negative nature of Young's letter was "part of the res
gestae of her protected protest about working conditions," and so
under Board precedent a mixed-motive inquiry does not apply as
that aspect of the letter cannot be separated out and serve as an
independent legal basis for her termination. Id.
Aware of this flaw in its argument, MCMH contends that
the res gestae standard has been "overruled and invalidated." It
pins its hopes on the recent General Motors decision, in which the
Board extended the Wright Line mixed-motive test to cases in which
an employee engages in a single instance of abusive behavior that,
apart from its abusive nature, would be protected under Section 7.
See Gen. Motors, 369 N.L.R.B. No. 127, at *1-2. But to no avail.
In General Motors, the Board cabined its holding to cases involving
abusive conduct, specifically exempting mere disparagement or
disloyalty. See id. at *9 n.16.
Here, Young expressed the following criticisms of MCMH's
management: "[The] MCMH Board Chairwoman['s] . . . statement . . .
sounds like complete allegiance to EMHS. What happened to loyalty
to our local hospital, staff and the patients and communities that
have benefited by the consistent, dedicated, experienced care
given by trusted local doctors?" "Hospital management who work
out of their offices and have meeting after meeting and who are
- 17 - not working where patients are being cared for, but who then make
decisions about staffing levels should be listening to those who
are actually caring for patients." "[M]anagement keeps going to
their meetings or are in their offices in their administrative
building, far from the doctors and nurses and other staff who are
working [in medical units of the hospital]." These measured
critiques were not abusive, a term the Board has reserved for truly
outrageous workplace conduct. See, e.g., id. at *1 (describing
abusive conduct by an employee who had "unleashed a barrage of
profane ad hominem attacks" and another employee who "shouted
racial slurs while picketing" (footnotes omitted)). Thus, General
Motors does not apply and provides no basis for remand.
Accordingly, the question presented was whether Young
surrendered her Section 7 protection by including disparaging and
false statements about hospital management and patient safety in
her letter. In a thorough analysis, the ALJ concluded that the
letter was not so inflammatory as to forfeit that statutory cloak
of protection. For the following reasons, we affirm that
conclusion.
"Where concerted activity entails communications with a
third party . . . , such activity is protected if it meets a two-
part test: (1) the communication indicates to the third party that
it is related to an ongoing dispute between an employer and
employees; and (2) the communication itself is not so disloyal,
- 18 - reckless or maliciously untrue as to lose the Act's protection."
Five Star Transp., 522 F.3d at 52 (quotations and citations
omitted); see also NLRB v. Local Union No. 1229, Int'l Brotherhood
of Elec. Workers (Jefferson Standard), 346 U.S. 464, 471 (1953).
"[T]he critical question" is whether the "communications
reasonably targeted the employer's labor practices, or
indefensibly disparaged the quality of the employer's product or
services." MikLin Enters., Inc. v. NLRB, 861 F.3d 812, 822 (8th
Cir. 2017) (en banc).
Young's letter focused on ongoing disputes between MCMH
management and staff, thus satisfying the first prong of Five Star
Transportation. As for the second prong, the arguably disparaging
statements were assertions that administrators gave "complete
allegiance" to EMHS, spent too much time in meetings, and
wrongfully disregarded input from nurses and other patient-facing
staff. Rather than resorting to panic-inducing rhetoric, Young
calmly articulated her strong disapproval of management's staffing
decisions. Compared to statements that have lost protection due
to their derogatory nature, these criticisms were circumspect.
See, e.g., St. Luke's Episcopal-Presbyterian Hosps., Inc. v. NLRB,
268 F.3d 575, 581 (8th Cir. 2001) (holding unprotected "materially
false and misleading" statement that hospital was "'jeopardizing
the health of mothers and babies' by depleting its staff of labor
and delivery [nurses], reducing the effectiveness of the remaining
- 19 - [nurses] by increasing their duties, and providing less qualified
replacements"); Coca Cola Bottling Works, Inc., 186 N.L.R.B. 1050,
1054 (1970) ("leaflet [distributed by striking Coca Cola
employees] was [designed] to create fear in the public's mind that
drinking Coca Cola would be harmful to the health of the purchaser
because of the presence of foreign objects such as roaches and
mice").
Furthermore, Young's letter did not impermissibly stray
from her labor concerns when she posited that understaffing would
diminish patient safety, as "patient welfare and working
conditions are often inextricably intertwined" in the health care
field. Valley Hosp. Med. Ctr., Inc., 351 N.L.R.B. 1250, 1252
(2007) (citing Brockton Hosp., 333 N.L.R.B. 1367, 1374-75 (2001),
enforced in relevant part, 294 F.3d 100 (D.C. Cir. 2002);
Misericordia Hosp. Med. Ctr., 246 N.L.R.B. 351, 356 (1979),
enforced, 623 F.2d 808 (2d Cir. 1980)). Lastly, the only clear
falsity in the letter was Young's statement that the union had
followed proper grievance procedures -- which it had not -- prior
to presenting its petition to management. However, Young made
this error in reasonable reliance on the union steward's statement
in the Ellsworth American. In sum, Young's criticisms were not so
disloyal or disparaging as to shed their Section 7 armor.
- 20 - c. Anti-Union Motive and Discouragement
We next turn to MCMH's criticisms of the findings
underpinning the Section 8(a)(3) violation. Under that provision,
an employer may not "encourage or discourage membership in any
labor organization" "by discriminat[ing] in regard to hire or
tenure of employment." 29 U.S.C. § 158(a)(3). This inquiry "turns
on the employer's primary motivation." McGaw of P.R., 135 F.3d
at 8 (citing Transp. Mgmt., 462 U.S. at 397–403).
Unlike Section 8(a)(1), which protects concerted
activities even absent any connection to an extant or potential
union, Section 8(a)(3) protects only union activities. See Gen.
Motors, 369 N.L.R.B. No. 127, at *1 (noting that "discipline based
on . . . Section 7 activity violates Section 8(a)(3) and (1) (or,
when no union activity is involved, just Section 8(a)(1))"). Here,
the ALJ justifiably concluded that Young's letter constituted
union activity protected under Section 8(a)(3) -- in addition to
concerted activity protected under Section 8(a)(1) -- because the
letter lent support to the nurses' union in its labor dispute.
See Pride Ambulance Co., 356 N.L.R.B. 1023, 1023, 1040 (2011)
(holding that employer violated Section 8(a)(3) by terminating
non-union employee who made "common cause with the striking
employees" by refusing to replace striker); Beth Israel Med. Ctr.,
292 N.L.R.B. 497, 498 (1989) (finding non-union employee's refusal
to cross picket line to be protected union activity); Signal Oil
- 21 - & Gas Co., 160 N.L.R.B. 644, 645, 649 (1966) (holding that employer
violated Section 8(a)(3) because termination of non-union employee
for "expression of support for the proposed union activity of his
fellow employees . . . would tend to discourage membership in a
labor organization"), enforced, 390 F.2d 338 (9th Cir. 1968).
Nonetheless, MCMH argues that the Section 8(a)(3)
violation must be reversed because the hospital neither acted with
a forbidden motive nor discouraged union membership.
i. Motive
In NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967),
the Supreme Court held that a violation of Section 8(a)(3) requires
a finding of "improper motive." Id. at 33. "If the employer's
conduct is 'inherently destructive' of union members'
rights . . . , a violation may be proved without evidence of
improper motive if the employer fails to prove that its actions
can be justified as 'something different than they appear on their
face.'" Southcoast Hosps. Grp., Inc. v. NLRB, 846 F.3d 448, 454
(1st Cir. 2017) (quoting Great Dane, 388 U.S. at 33). "Even if a
business justification has been proved, an inference of improper
motive may be drawn from the inherently destructive conduct
itself . . . ." Id. (quoting Great Dane, 388 U.S. at 33–34).
Where the effect of the employer's conduct is instead
"comparatively slight," and the employer proves that "the
challenged conduct serves 'legitimate and substantial' business
- 22 - interests," the General Counsel has the burden of proving a
discriminatory motive via direct evidence. Id. (quoting Great
Dane, 388 U.S. at 34).4
MCMH argues that, because the Board did not explicitly
find the discharge of Young to be inherently destructive, the
discharge must instead have been comparatively slight.
Furthermore, MCMH contends that it introduced evidence of
legitimate business reasons for the firing, and that the General
Counsel was therefore required to submit direct evidence of
discriminatory motive, a requirement it failed to meet. This
argument is a nonstarter.
Although the Board did not use the phrase "inherently
destructive," it did effectively conclude that MCMH's disciplinary
actions were just that. The Board held that "Young was discharged
for engaging in protected . . . union activity," Me. Coast Reg'l
Health Facilities, 369 N.L.R.B. No. 51, slip op. at *1, and we see
no basis for concluding that finding was clearly erroneous.
Because Young's termination was in direct response to her protected
union activity, it was "inherently destructive." See Kaiser Eng'rs
4 The inquiry under Great Dane (whether to infer anti-union motive based on the presence or absence of legitimate business interests for discharge) has the potential to blur with the inquiry under Wright Line (whether the termination was primarily motivated by protected or unprotected conduct) to the point of indistinguishability.
- 23 - v. NLRB, 538 F.2d 1379, 1386 (9th Cir. 1976) ("Where discriminatory
conduct is directly related to protected activity . . . , such
conduct is inherently destructive . . . .") (citing Signal Oil &
Gas Co. v. NLRB, 390 F.2d 338, 343, 344 (9th Cir. 1968)); see also
Kan. City Power & Light Co. v. NLRB, 641 F.2d 553, 559 (8th Cir.
1981) ("[A]ctions creating visible and continuing obstacles to the
future exercise of employee rights are inherently destructive."
(quotations and citation omitted)); NLRB v. Borden, Inc., Borden
Chem. Div., 600 F.2d 313, 321 (1st Cir. 1979) (noting that whether
conduct is inherently destructive can turn on "whether the conduct
discriminated solely upon the basis of participation in strikes or
union activity"); Portland Willamette Co. v. NLRB, 534 F.2d 1331,
1334 (9th Cir. 1976), as amended (June 14, 1976) ("Examples of
inherently destructive activity are permanent discharge for
participation in union activities . . . ."). Therefore, MCMH's
motive-based arguments provide no reason to overturn the
Section 8(a)(3) violation.
ii. Actual Discouragement
Next, MCMH claims that the Section 8(a)(3) violation is
infirm because there was no direct evidence that Young's firing
discouraged membership in a union and because the Board failed to
make any findings regarding discouragement. A violation of
Section 8(a)(3) "requires specifically that the Board find a
discrimination and a resulting discouragement of union
- 24 - membership." See Great Dane, 388 U.S. at 32 (citing Am. Ship Bldg.
Co. v. NLRB, 380 U.S. 300, 311 (1965)). However, direct proof "is
not required where encouragement or discouragement can be
reasonably inferred from the nature of the discrimination." Radio
Officers' Union of Com. Telegraphers Union v. NLRB, 347 U.S. 17,
51 (1954); see also Great Dane, 388 U.S. at 32 (inferring
discouragement where employer gave certain benefits to "employees
who are distinguishable only by their participation in protected
concerted activity"). Moreover, "[d]iscouraging membership in a
labor organization 'includes discouraging participation in
concerted activities'" related to a union. Great Dane, 388 U.S.
at 32 (quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 233
(1963)).
As discussed, MCMH decided to discharge Young based
solely on her protected letter writing activity. It seems obvious
to us that firing an employee for participation in protected
activities would tend to discourage participation in those
activities. Accordingly, discouragement can be easily inferred,
and there was no need for direct evidence.
Moreover, given the circumstances, the lack of explicit
discussion of discouragement does not invalidate the Board's
decision. "The Supreme Court has held, time and again, that a
violation of § 8(a)(3) normally turns on an employer's antiunion
purpose or motive." 800 River Rd. Operating Co. v. NLRB, 784 F.3d
- 25 - 902, 908 (3d Cir. 2015); see also Radio Officers' Union, 347 U.S.
at 44 ("That Congress intended the employer's purpose in
discriminating to be controlling is clear."). Unsurprisingly,
then, actual discouragement often goes unmentioned in the Board's
opinions. See, e.g., Rocky Mountain Eye Ctr., 363 N.L.R.B. No.
34, 2015 WL 6735641, at *1-3 (Nov. 3, 2015) (holding that employer
violated Section 8(a)(3), without discussing discouragement,
"because the very conduct for which [employee] was terminated was
union organizing activity protected by the Act"); Nor-Cal
Beverage, 330 N.L.R.B. at 611-12 (concluding that Section 8(a)(3)
was violated, without mention of discouragement, where employee
was disciplined for protected activity of criticizing fellow
employees who expressed interest in breaking picket line).
Here, despite the lack of the word "discouragement," the
Board's opinion is replete with statements suggesting a concern
for discouragement. First, the ALJ stated that "[i]f employees
lost their NLRA right to protest working conditions every time an
employer could identify a minor misstatement of the type shown
here, it would render that right a nullity in a large segment of
instances and would profoundly chill employees from exercising
their Section 7 rights at all." Me. Coast Reg'l Health Facilities,
369 N.L.R.B. No. 51, slip op. at *15 (Mar. 30, 2020). Second, the
Board's remedy required the Employer to "[a]dvise [its] employees
that the original media policy w[ould] not be used to discipline
- 26 - them for communicating with the news media . . . regarding
employees' terms and conditions of employment or union activity."
Id. at *4. Similarly, the Board required MCMH to post notices
stating that it would not "discharge, discipline, or otherwise
discriminate against employees for engaging in protected concerted
activities and/or for supporting [the nurses' union,]" and that it
would "offer Karen-Jo Young full reinstatement" and "[m]ake [her]
whole for any loss of earnings and other benefits." Id. at *5.
The implication is clear: absent a remedy, Young's
firing would discourage other employees from engaging in protected
activities. See Great Dane, 388 U.S. at 32 (concluding there was
"no doubt" the discouragement requirement was met where the
employer's conduct "surely may have [had] a discouraging effect on
either present or future concerted activity"). We therefore
conclude that the Board's determination that MCMH violated
Section 8(a)(3) is not spoiled by the lack of an explicit finding
of discouragement.
2. Scope of the Remedy
Based on these violations, the Board ordered MCMH to
post notices at every EMHS facility where its original media policy
was disseminated, including eight medical facilities that appear
to be corporate entities separate from MCMH. MCMH now argues that
EMHS was not a party to the proceedings, and that the Board
- 27 - therefore exceeded its authority by compelling MCMH to take actions
at those locations. We agree.
"The Board has 'the primary responsibility and broad
discretion to devise remedies that effectuate the policies of the
Act,' and that discretion is 'subject only to limited judicial
review.'" Visiting Nurse Servs. of W. Mass., Inc. v. NLRB, 177
F.3d 52, 61–62 (1st Cir. 1999) (quoting Sure-Tan, Inc. v. NLRB,
467 U.S. 883, 888-89 (1984)). However, "the relief which the
statute empowers the Board to grant is to be adapted to the
situation which calls for redress." Sure-Tan, 467 U.S. at 900
(quoting NLRB v. MacKay Radio & Tel. Co., 304 U.S. 333, 348
(1938)). Thus, a remedy ordered by the Board "should stand unless
it can be shown that [it] is a patent attempt to achieve ends other
than those which can fairly be said to effectuate the policies of
the Act." Pegasus Broad. of San Juan v. NLRB, 82 F.3d 511, 513
(1st Cir. 1996) (alteration in original) (quoting Va. Elec. & Power
Co. v. NLRB, 319 U.S. 533, 540 (1943)). Here, the relevant policy
comes from 29 U.S.C. § 160(b), which provides that the General
Counsel must "issue and cause to be served upon [the party] a
complaint stating the charges . . . and containing a notice of
hearing before the Board."
The General Counsel initiated the proceeding below by
serving MCMH with a complaint in which the respondent was named
Maine Coast Regional Health Facilities, d/b/a Maine Coast Memorial
- 28 - Hospital. Near the end of trial, the General Counsel moved to
amend the complaint "to correctly reflect the fact that [EMHS] is
certainly the Respondent," stating that the revision was intended
to allow the Board to order repudiation notices to be posted at
locations other than MCMH. MCMH initially objected, but, after an
off-record discussion, consented only to amending MCMH's name to
its current iteration: Maine Coast Regional Health Facilities,
d/b/a Maine Coast Memorial Hospital, the sole member of which is
Eastern Maine Healthcare Systems. As the ALJ noted, that change
was not what the General Counsel initially sought.
The Board contends that this amendment added EMHS as a
party and, in the alternative, that MCMH's consent to the amendment
constituted a waiver of its current objection.5 The revision,
however, simply retained MCMH as the sole respondent, adding only
the corporate relationship between MCMH and EMHS. The amendment
did not change the fact that EMHS was never named as the respondent
in a complaint, served with a complaint, or given a hearing.6
5 The Board makes no argument that MCMH and EMHS can be treated as one entity under the single employer doctrine. See generally NLRB v. Hosp. San Rafael, Inc., 42 F.3d 45, 50 (1st Cir. 1994). 6 The Board notes that the individual who accepted service on behalf of MCMH and many of those present at the trial were employees of EMHS. This is inconsequential because those individuals were acting as representatives of MCMH, the sole entity charged in the complaint. While EMHS was clearly aware of the
- 29 - Where a parent and subsidiary are properly maintained as separate
corporate entities, jurisdiction over the subsidiary does not
necessarily generate jurisdiction over the parent. See de Walker
v. Pueblo Int'l, Inc., 569 F.2d 1169, 1173 (1st Cir. 1978) (citing
Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 335, 336-37
(1925)). Thus, the amendment provides no basis for concluding
that EMHS was joined as a party or that MCMH consented to extending
the remedy beyond its corporate borders. Allowing the Board to
indirectly bind EMHS through an order naming MCMH as its subject
would contravene the policy that the Board may exert its authority
only over parties that have been afforded notice and hearing. See
29 U.S.C. § 160(b).7 We conclude that no remedy regarding the non-
MCMH locations would be appropriate, so a remand would be
pointless. See Wang Theatre, 981 F.3d at 117 (citing NLRB v.
Wyman-Gordon Co., 394 U.S. 759, 766-67 n.6 (1969)) (vacating
Board's orders without further proceedings where outcome of remand
was preordained); Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 147 (1st
Cir. 1981) (citing NLRB v. Savin Bus. Machs. Corp., 649 F.2d 89,
proceedings, EMHS was never given notice that it was being charged with violations of labor law. 7The Board argues that MCMH lacks standing to raise this argument on behalf of EMHS. As noted, though, the Board's order requires MCMH itself to post notices at the other locations, an unreasonable task given the Board's lack of authority over EMHS. Therefore, MCMH has standing to challenge the scope of the remedy.
- 30 - 93 (1st Cir. 1981)) (enforcing order in part; striking one
provision of order without remand).
IV. Conclusion
We grant the Board's application for enforcement of its
order, striking those portions of the order requiring MCMH to post
repudiation notices at facilities operated by other corporate
entities.
So ordered.
- 31 -