NLRB v. St. Francis Health

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0170P (6th Cir.) File Name: 00a0170p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

NATIONAL LABOR RELATIONS ;  Petitioner/Cross-Respondent,  BOARD,   Nos. 98-6297/6401

 v. >    ST. FRANCIS HEALTHCARE

Respondent/Cross-Petitioner.  CENTRE,  1 On Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board. Nos. 8-RC-15410; 8-CA-29739. Argued: October 26, 1999 Decided and Filed: May 19, 2000 Before: RYAN and COLE, Circuit* Judges; WILHOIT, District Judge.

* The Honorable Henry R. Wilhoit, Jr., Chief United States District Judge for the Eastern District of Kentucky, sitting by designation.

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_________________ possible that the Board’s determination that the Biddle letter does not constitute a violation of the Act is correct. See, e.g., COUNSEL Dayton Hudson, 79 F.3d 546 (upholding the Board’s decision after an earlier remand for an evidentiary hearing in Dayton ARGUED: G. Roger King, JONES, DAY, REAVIS & Hudson Department Store Co. v. NLRB, 987 F.2d 359 (6th POGUE, Columbus, Ohio, for Respondent. Robert J. Cir. 1993)); Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d Englehart, NATIONAL LABOR RELATIONS BOARD, 302 (6th Cir. 1989) (upholding, on second review, the same APPELLATE COURT BRANCH, Washington, D.C., for result after a remand and evidentiary hearing by the Board); Petitioner. ON BRIEF: G. Roger King, Brian G. Selden, Van Leer Containers, Inc. v. NLRB, 943 F.2d 786 (7th Cir. JONES, DAY, REAVIS & POGUE, Columbus, Ohio, for 1991) (same); NLRB v. Monark Boat Co., 800 F.2d 191 (8th Respondent. Robert J. Englehart, Frederick C. Havard, John Cir. 1986) (same); Bauer Welding & Metal Fabricators, Inc. D. Burgoyne, NATIONAL LABOR RELATIONS BOARD, v. NLRB, 758 F.2d 308 (8th Cir. 1985) (same). APPELLATE COURT BRANCH, Washington, D.C., for Petitioner. In sum, I respectfully concur in the court’s decision to uphold the first election and to remand the second election for RYAN, J., delivered the opinion of the court, in which an evidentiary hearing on St. Francis’s objection to the Biddle WILHOIT, D. J., joined. COLE, J. (pp. 35-39), delivered a letter. separate concurring opinion. _________________ OPINION _________________ RYAN, Circuit Judge. These consolidated appeals arise out of the efforts of the Health Care and Social Services Union, SEIU, AFL-CIO (Union), to become the certified bargaining representative for certain employees of St. Francis Healthcare Centre. Following two elections, the National Labor Relations Board certified the Union as the bargaining representative. The Board now seeks enforcement of the bargaining order it issued following the second election, which the Union won. St. Francis cross-petitions for review of the Board’s decision to set aside the first election, which the Union lost, as well as the Board’s refusal to review St. Francis’s objections to the second election. We will deny enforcement of the Board’s bargaining order and remand the case to the Board to conduct an evidentiary hearing on St. Francis’s objection to the second election.

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Francis has established its success on four of the factors I. Standard of Review articulated by Mitchellace. For example, although the majority states that St. Francis is favored on the question of A party who seeks to overturn the results of a representation timing, the timing of the letter and some of the other election bears the burden of demonstrating that the election circumstances of this case are not unlike those in Dayton was conducted unfairly. To meet this burden, “the objecting Hudson Department Store Co. v. NLRB, 79 F.3d 546, 551 party must demonstrate that ‘unlawful conduct occurred (6th Cir. 1996), in which the court upheld the Board’s which interfered with employees’ exercise of free choice to determination. In Dayton Hudson, a letter with substantial such an extent that it materially affected the result of the misrepresentations was mailed to employees three days before election.’” Contech Div., SPX Corp. v. NLRB, 164 F.3d 297, the election, the writers of the letter were known to be allied 305 (6th Cir. 1998) (quoting NLRB v. Shrader’s, Inc., 928 with the union, but, unlike here, the union won by a F.2d 194, 196 (6th Cir. 1991)), cert. denied, 120 S. Ct. 64 significant margin. See id. at 548, 551. In this case, in (1999). While the Board strives to achieve “laboratory addition, St. Francis became aware of the letter one or two conditions” during representation elections, we have days before the election, and although it did not respond, it recognized that this can be an elusive goal, and so “elections may have had a sufficient opportunity to do so. See are not automatically voided whenever they fall short of Mitchellace, 90 F.3d at 1156 (stating that the employer, who perfection.” NLRB v. Duriron Co., 978 F.2d 254, 256 (6th learned of a flyer distributed the day before the election, was Cir. 1992). able to effectively respond). As to the third factor, although the centrality of the issues in the alleged misrepresentation to We review for abuse of discretion the Board’s the representation campaign may be considered, this factor determination whether a representation election has allowed primarily assesses the extent and “artfulness” of the alleged employees to exercise free choice. Colquest Energy, Inc. v. deception. Cf. Midland Nat’l Life Ins. Co., 263 N.L.R.B. 127, NLRB, 965 F.2d 116, 119 (6th Cir. 1992). The Board’s 133 (1982) (prohibiting the use of forged documents); Van findings of fact are conclusive if supported by substantial Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343, 348 (6th evidence. Evidence is substantial when it is “‘adequate, in a Cir. 1984). The extent of the misrepresentation in this case is reasonable mind, to uphold the [Board’s] decision.’” DTR disputed; St. Francis alleges it was significant. Fourth, St. Indus., Inc. v. NLRB, 39 F.3d 106, 110 (6th Cir. 1994) Francis raises a material issue of fact on the source of the (quoting Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, letter and whether employees could determine the source. 295 (6th Cir. 1985)). We must consider the record as a Fifth, whether employees were affected by the alleged whole, including evidence that runs contrary to the Board’s misrepresentation is unclear; St. Francis has provided scant findings. Id. Deference to the Board’s factual findings is evidence that employees were affected by the letter. Finally, particularly appropriate where conflicting testimony requires the election’s closeness militates toward holding an the Board to make credibility determinations. Tony Scott evidentiary hearing. Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987); see also V&S ProGalv, Inc. v. NLRB, 168 F.3d 270, 275 (6th Mindful that no set of factors governs whether or not an Cir. 1999). The Board’s application of law to facts is also evidentiary hearing is necessary, the material issues raised by reviewed under the substantial evidence standard, and “‘the St. Francis direct us to remand for an evidentiary hearing at Board’s reasonable inferences may not be displaced on review which the Board can resolve these factual questions and even though the court might justifiably have reached a determine the appropriate result. After this hearing, it is

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different conclusion had the matter been before it de novo.’” II. V&S ProGalv, 168 F.3d at 275 (citation omitted). I also write separately on our decision to remand to the II. The First Election Board for an evidentiary hearing on St. Francis’s objection to the Biddle letter. A. Although St. Francis bears the burden in its quest to St. Francis is an Ohio not-for-profit corporation operating overturn the election, see NLRB v. Gormac Custom Mfg., Inc., a rehabilitation hospital and skilled nursing facility in Green 190 F.3d 742, 746 (6th Cir. 1999), we must take the evidence Springs, Ohio. In July 1996, District 1199 of the Union filed presented by St. Francis in the light most favorable to the a petition with the Board seeking to represent approximately company, see NLRB v. Valley Bakery, Inc., 1 F.3d 769, 772 150 full- and part-time service and maintenance employees at (9th Cir. 1993); Prestolite Wire Div. v. NLRB, 592 F.2d 302, St. Francis’s facility. An election was held on October 3 and 306-307 (6th Cir. 1979). Here, St. Francis makes a showing 4, 1996; 71 employees voted against the Union, 60 voted for of “substantial and material factual issues” which, if proven, the Union, and there were 10 challenged ballots. would warrant setting aside the election. See 29 C.F.R. 102.69(d) (stating that a “hearing shall be conducted with The Union filed objections to the election with the NLRB respect to those objections or challenges which the regional Regional Director. Following a hearing, a hearing officer director concludes raise substantial and material factual recommended that the election be set aside and a new election issues”); NLRB v. Tennessee Packers, Frosty Morn Div., 379 be conducted, based upon three of the Union’s objections. F.2d 172, 177-78 (6th Cir. 1967). Specifically, the hearing officer found that St. Francis had: (1) threatened that unionization would prevent St. Francis As stated by the majority, in addition to the timing of the from affiliating with a partner, forcing the facility to close statement, “this court has considered other factors, including within 18 months; (2) threatened to reduce or eliminate whether the employer was aware of the communication and current employee benefits during the bargaining process; and had an opportunity to respond, the extent of the (3) prohibited employees from wearing pro-Union insignia on misrepresentation, whether the source of the their uniforms and enforced its no-solicitation policy in a misrepresentation was identified, and whether there is discriminatory manner. St. Francis appealed this decision to evidence that employees actually were affected by the the Board, which adopted the hearing officer’s findings and misrepresentation.” Mitchellace v. NLRB, 90 F.3d 1150, recommendations and ordered a new election. 1155 (6th Cir. 1996). We also note the closeness of the election. See Gormac Custom Mfg., 190 F.3d at 747; see also We proceed to address the Board’s three grounds for Valley Bakery, 1 F.3d at 773 (“The need for a hearing is ordering a second election. particularly great when the election is close.”); NLRB v. Bristol Spring Mfg. Co., 579 F.2d 704, 707 (2d Cir. 1978). The majority finds that St. Francis raises material issues of fact on at least four of these five points. While I agree that St. Francis raises sufficient issues of material fact to support holding an evidentiary hearing, I do not believe that St.

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testified that Storer stated, for example, that they would “have B. to start from zero and work up to regain the benefits” they had. These statements do not merely indicate that, as the St. Francis’s Statements Concerning Facility’s Long- majority states, the employees “would need to negotiate to Term Viability achieve their current benefits once bargaining began,” but that St. Francis would begin from zero if the workers unionized. 1. See NLRB v. Construction & Gen. Laborers’ Union, Local No. 534, 778 F.2d 284, 291 (6th Cir. 1985) (noting that “the St. Francis’s management decided in 1995 to seek potential speaker’s intent must be inferred from the circumstances as partners in the health care industry in order to compete more they appear to the reasonable person,” and that “assertions effectively. The company conducted monthly “open forum” that the employer will ‘bargain from scratch’ are unfair labor meetings at which senior management shared, with all practices”). Second, the unsigned pro-management leaflet, employees who chose to attend, strategic information about which stated that the company would begin bargaining at “0”, the company and its financial situation and explored the provides additional evidence supporting the Board’s possibility of affiliation. At a September 18, 1996, open conclusion that the company violated Section 8(a)(1) of the forum conducted during the Union’s organizing campaign, an Act. Further, St. Francis’s oral and written statements were employee asked St. Francis’s CEO, Gregory Storer, whether made in the context of a campaign in which other violations a vote for Union representation would affect the ability to find of the Act occurred, including the hallmark violation of a partner. Storer testified before the hearing officer that he threatened plant closure. responded by explaining that the most likely partner did not have any organized labor contracts and had expressed We may not reverse the Board’s reasonable inferences “concerns” about labor organization at St. Francis. According “even though [we] might justifiably have reached a different to Storer, he told employees that the potential partner “wanted conclusion had the matter been before [us] de novo.” Tony to know how it was going and the progress and when the vote Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 313 (6th Cir. was going to take place.” Another employee attending the 1987). In light of the above evidence presented to the ALJ, I open forum then asked Storer how long St. Francis could believe that substantial evidence exists to support the Board’s survive without a partner. According to Storer, he responded determination. This evidence is such that “‘a reasonable mind that the organization’s current cash reserves would probably might accept as adequate to support’” the Board’s conclusion. allow it to operate for about 18 months. Contech Div., SPX Corp. v. NLRB, 164 F.3d 297, 305 (6th Cir. 1998), cert. denied, 120 S.Ct. 64 (1999) (quoting Employees recalled Storer’s statements during the Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 September 18 open forum somewhat differently, testifying as (1938)). follows:

Because we find independent violations of the Act, the 1. According to Colleen Kimmet, a nurse, Storer stated that majority’s determination of this issue does not require St. Francis needed to affiliate with another institution, overturning the Board’s decision on the first election. and that “no hospital or institution would want to affiliate Accordingly, I concur in the majority’s resolution of the with St. Francis if it was unionized, and without challenge to the first election. affiliation St. Francis would close in a year and a half.”

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2. Karen Slagle, a housekeeper, testified that “[Storer] said _________________ that if the union got in that other hospitals would not want to affiliate with us and that financially our doors CONCURRENCE would close in a year and a half.” Slagle then responded _________________ to a question from the Union representative: R. GUY COLE, JR., Circuit Judge, concurring. I Q: . . . And so [Storer] told people that hospitals respectfully write separately to address two points. wouldn’t take you if you voted for the union, is that what you– I.

A: It wouldn’t be attractive to other hospital First, although I agree with the majority’s conclusion that groups. the Board’s decision to set aside the first election was supported by substantial evidence, I disagree with the 3. Melanie Ott, a nurse’s assistant, recalled that Storer majority’s rejection, in Part II.C., of the Board’s stated that “if the union got in that nobody would be determination that St. Francis threatened to bargain “from affiliated with us because they wouldn’t work with a scratch,” thereby violating Section 8(a)(1) of the Act. unionized facility. And if it got through that the doors would close within a year, year and a half, because we I agree with the majority that the record contains evidence couldn’t stand alone.” to support St. Francis’s position that its statements were intended to inform employees about the bargaining 4. According to Naomi Rose, a patient care technician, consequences of union representation. For example, the two Storer stated “that the alliance would not join with us if memorandum issued by St. Francis present a relatively we was union, and that if we became union St. Francis balanced and permissible presentation of the impact of would have to close in a year and a half, because nobody unionization. would affiliate with us.” On cross-examination, the following colloquy took place: However, the record also contains evidence that St. Francis made impermissible threats regarding bargaining with the Q: . . . [Y]ou understood that his remarks were union. based upon the inability of the hospital to affiliate in the event the union were voted in? It is well established that “bargaining from ground zero” or “bargaining from scratch” statements by A: Yes, sir. employer representatives violate Section 8(a)(1) of the Act if, in context, they reasonably could be understood Q: . . . And he expressed his belief that the facility by employees as a threat of loss of existing benefits and would not be an attractive candidate for affiliation if leave employees with the impression that what they may the union were voted in? ultimately receive depends upon what the union can induce the employer to restore. A: Yes, sir. Taylor-Dunn Mfg. Co., 252 N.L.R.B. 799, 800 (1980). The ALJ heard testimony from employees at the open forum who

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enforcement of its bargaining order. We REMAND to the Q: And for that reason, without affiliation, . . . the Board to conduct a Van Dorn hearing on St. Francis’s Biddle facility would close? letter objection to the second election. A: Yes, sir. Pro-management literature also addressed affiliation. For example, Sue Fretz, an RN manager who supervised approximately 80 employees, admitted that she obtained from management a “doctored” Union leaflet which stated, in part: HOW WILL THE UNION HELP US WHEN THE FACILITY CLOSES IT’S [SIC] DOORS BECAUSE THE UNION KEEPS US OUT OF LARGER HEALTHCARE SYSTEMS AND THE FINANCIAL SUPPORT THAT COMES FROM THESE AFFILIATIONS???? EVERYONE WILL BE LOOKING FOR JOBS!!!!! Fretz circulated this leaflet to her subordinates at meetings, highlighting the language concerning affiliation and warning that unionization could jeopardize the facility’s affiliation prospects. The hearing officer credited the employees’ testimony over Storer’s testimony and concluded that Storer’s predictions about the impact of unionization on affiliation were exaggerated. Taken in conjunction with the prediction that the facility would close within 18 months without a partner, the hearing officer found that Storer effectively threatened to close the facility in violation of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Board adopted the hearing officer’s findings and ordered a new election based, in part, on these findings. 2. St. Francis contends that the record does not support a threat. It maintains that Storer merely represented that unionization had the potential to disrupt affiliation, and that

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this prediction was supported with objective evidence, St. Francis contends that the six-month statute of specifically, the “concerns” raised by one potential affiliate. limitations period under 29 U.S.C. § 160(b) began to run with its July 1997 refusal to bargain and did not start anew Section 8(a)(1) of the National Labor Relations Act with its March 1998 refusal. The Board maintains that the (NLRA) prohibits interference, restraint, or coercion of March 3, 1998, refusal constituted an independent unfair employees in the exercise of the right to self-organization. labor practice, and the unfair labor practice charge was filed 29 U.S.C. § 158(a)(1). within six months of that refusal. The Board reasons that the March 1998 refusal was independent of the earlier refusal “The test for determining whether an employer has because it fell within one year of the Union certification, violated section 8(a)(1) is whether the employer’s during which time St. Francis was under a continuing conduct tends to be coercive or tends to interfere with the obligation to bargain. See Brooks v. NLRB, 348 U.S. 96, 104 employees’ exercise of their rights. In making this (1954). determination, the Board considers the total context in which the challenged conduct occurs and is justified in We reject St. Francis’s argument. First, we note that the viewing the issue from the standpoint of its impact upon six-month limitations period is procedural, not jurisdictional, the employees.” and is therefore “subject to recognized equitable doctrines.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n.11 United Parcel Serv. v. NLRB, 41 F.3d 1068, 1071-72 (6th Cir. (1982); see also NLRB v. Babcock & Wilcox Co., 697 F.2d 1994) (citations omitted). 724, 727 (6th Cir. 1983). In NLRB v. Basic Wire Products, Inc., 516 F.2d 261, 268 (6th Cir. 1975), we held that Like the Board, we must consider the effect of statements successive refusals to bargain within one year of union made during a union election campaign from the employees’ certification constitute independent unfair labor practices for perspective, taking into account “the economic dependence of purposes of applying the six-month limitations period. See the employees on their employers, and the necessary tendency also Bentson Contracting Co. v. NLRB, 941 F.2d 1262, 1264 of the former, because of that relationship, to pick up intended n.2 (D.C. Cir. 1991). Moreover, even if we were inclined to implications of the latter that might be more readily dismissed revisit our holding in Basic Wire Products, we need not by a more disinterested ear.” Indiana Cal-Pro, Inc. v. NLRB, address the timeliness of the unfair labor practice charge 863 F.2d 1292, 1299 (6th Cir. 1988) (internal quotation marks given our other holdings. The Board erroneously denied St. and citations omitted). Francis’s request for review of the second election on June 16, 1997—almost one month before the Union’s first Management’s expression of views or opinion is bargaining request. This renders moot the timeliness of the permissible if the expression contains “no threat of reprisal or unfair labor practice charge emanating from St. Francis’s force or promise of benefit.” 29 U.S.C. § 158(c). Thus, the refusal to bargain. Supreme Court has held that an employer may V. make a prediction as to the precise effects he believes unionization will have on his company. In such a case, We DENY St. Francis’s petition for review on the first however, the prediction must be carefully phrased on the election, GRANT St. Francis’s petition for review on the basis of objective fact to convey an employer’s belief as second election, and DENY the Board’s application for to demonstrably probable consequences beyond his

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The Board argues as a last resort that St. Francis cannot control . . . . If there is any implication that an employer challenge the failure to conduct an evidentiary hearing on the may or may not take action solely on his own initiative Biddle letter objection because St. Francis never asked the for reasons unrelated to economic necessities and known Board for an evidentiary hearing. This argument is both only to him, the statement is no longer a reasonable factually and legally incorrect. In asking the Board to review prediction based on available facts but a threat of the Regional Director’s certification of the second election, retaliation based on misrepresentation and coercion [and St. Francis addressed the Biddle letter, among other in violation of the NLRA]. objections. At the conclusion of its request, St. Francis asked the Board to either order a rerun election or “hold a hearing Gissel Packing Co., 395 U.S. at 618 (citations omitted); see and further develop the evidence in this matter.” Moreover, also Indiana Cal-Pro, 863 F.2d at 1298. If an employer the Board was required to hold a hearing once St. Francis succeeds in articulating an objective basis for its prediction, succeeded in raising substantial and material factual issues the Board bears the burden of demonstrating that the surrounding the Biddle letter. “‘[I]n the course of prediction was not objective or was untruthful. DTR Indus., determining whether the Board has abused the discretion 39 F.3d at 114. entrusted to it by Congress to adjudicate representation disputes fairly, we must satisfy ourselves that the Board’s Although the matter is not entirely free from doubt, we order is the product of procedures which are fundamentally conclude that we must agree with the Board’s determination fair.’” Gormac, 190 F.3d at 746 (quoting Shrader’s, 928 F.2d that Storer threatened facility closure in violation of section at 198). 8(a)(1). This threat was comprised of two predictions: (1) that no entity would affiliate with St. Francis if the Union We conclude, therefore, that the Board abused its discretion won the election; and (2) that St. Francis could not operate in refusing to grant an evidentiary hearing to evaluate the longer than 18 months if it failed to affiliate with a partner. Biddle letter under Van Dorn and its progeny. The parties do not dispute the content or objective basis for the second prediction. IV. Statute of Limitations Rather, the dispute centers on the first prediction and, Finally, St. Francis maintains that the Board, and therefore specifically, what Storer said and his objective basis for such this court, lacked jurisdiction over the Union’s unfair labor statement. We defer to the Board’s finding that Storer practice charge because the charge was untimely. On July 14, predicted that no partner would want to affiliate with St. 1997, following the Regional Director’s certification of the Francis if the facility elected the Union. We see no reason to second election, the Union sent a letter to St. Francis disturb this credibility determination, which the hearing requesting dates for collective bargaining. In its July 28, officer based upon the cumulative testimony of employee 1997, response letter, St. Francis refused to bargain and witnesses and his observations of witness demeanor. St. advised the Union that it intended to seek judicial review of Francis has failed to articulate an objective basis for this the certification. On February 20, 1998, the Union again prediction. St. Francis insists that the most likely partner had requested bargaining. In a March 3, 1998, response letter, St. expressed “concerns” about possible unionization at St. Francis directed the Union to its earlier refusal. The Union Francis. However, this evidence hardly supports the filed its unfair labor practice charge with the NLRB on prediction that no company would want to affiliate with St. March 11, 1998. Francis if the employees elected a union. Viewing Storer’s

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statements from the perspective of employees, his the election decisively. The closeness of the results of the exaggeration of the objective evidence was material. Thus, second election, standing alone, may be insufficient to support substantial evidence supports the Board’s finding that Storer’s a finding that the Biddle letter actually affected employees. exaggerated prediction violated section 8(a)(1)’s prohibition But we view this evidence in the context of the overall Union on coercing employees in the exercise of their organization election campaign. St. Francis established a material issue of rights. fact as to the impact of the Biddle letter because: (1) the Union lost the first election by an even greater margin than St. Francis argues, in the alternative, that Storer’s that by which it won the second election; (2) employees did statements occurred too far before the election to interfere not see the Biddle letter during the first election campaign; with employees’ free and fair choice. Timing is one of the and (3) the Biddle letter touched on a significant and objective factors that the Board considers in determining contested issue in the campaign. whether forbidden statements were reasonably likely to interfere with employees’ free choice. See NLRB v. Dickinson The Board insists that it was unnecessary to conduct the Press, Inc., 153 F.3d 282, 286 (6th Cir. 1998). However, it is foregoing analysis in this case because the employees were not dispositive. Thus, in Peabody Coal Co. v. NLRB, 725 capable of recognizing the Biddle letter as campaign F.2d 357 (6th Cir. 1984), we upheld the Board’s propaganda and accord it the proper weight. The Board cites determination that the employer engaged in misconduct Contech, 164 F.3d 297, in support of its contention. The during a representation election by making unsupported Board’s approach is clearly at odds with Van Dorn and its predictions of plant closure where those predictions occurred progeny. First, Contech is distinguishable from this case, as three and four weeks before the election. In this case, the the alleged misrepresentations in Contech appeared in Union threat occurred approximately two weeks before the election. letters and there was no evidence of “pervasive Given that threats of facility closure are among the most misrepresentation or artful deception.” Id. at 307. In contrast, flagrant variety of unfair labor practices, DTR Indus., 39 F.3d the Biddle letter was not readily identifiable as campaign at 113, and are likely to be difficult to dispel when viewed propaganda because it appeared to be a personal message from the employees’ perspective, we see no reason to disturb from a former co-worker, was handwritten in letter rather than the Board’s finding based on the timing of the threat. leaflet form, and used language such as “we” and “fellow co- workers.” See Dayton Hudson, 987 F.2d at 365. Most C. importantly, labeling material as “propaganda” does not insulate the material from consideration under Van Dorn. St. Francis’s Representations Concerning Bargaining Such an approach would effectively eviscerate Van Dorn Posture because virtually any representation made in the context of a union campaign could be characterized as propaganda. Thus, 1. even if employees are capable of recognizing literature as campaign propaganda—based on its source or content—a During an August 6, 1996, open forum, an employee asked misrepresentation in the propaganda may be so artful or what benefits would be available if the employees voted for deceptive that it overcomes the employees’ natural Union representation. According to Storer, he responded that skepticism, “resulting in employees believing that the bargaining in contract negotiations involves a give and take, campaign propaganda must absolutely be true.” Hub Plastics, that employees may keep something and may lose something, 52 F.3d at 613. and that “everything is negotiable.” He recalled using the

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The third, and most important, factor favors St. Francis. words “start[ing] from scratch” in describing the bargaining See Gormac, 190 F.3d at 748. First, it is undisputed that the process. Storer denied stating that employees would lose their management raise issue was hotly contested in the days benefits before bargaining began, or that minimum wage with leading up to the second election. The Union’s campaign no benefits was the starting point for bargaining. literature suggested that management’s greed was detrimental to the employees’ work environment and to St. Francis’s The Union presented testimony from two employees who overall patient care mission. The management raise issue was attended the August 6 open forum. Employee Rose recalled closely related to one of the central issues in both Storer stating that bargaining starts “from zero” and that if campaigns—St. Francis’s long-term financial viability. employees wanted the level of benefits they currently enjoyed, Second, the Biddle letter insinuates that St. Francis they would need to negotiate it and it was “not guaranteed intentionally lied to its employees by denying that it gave that [they would] get them.” According to employee Kimmet, raises and engaged in deceptive practices by backdating the Storer stated that everything was up for negotiation, nothing raises. Thus, the letter challenges St. Francis’s overall was guaranteed, and employees would start from zero and credibility, even apart from the management raise issue. See “negotiate back up” or “work up to regain the benefits.” NLRB v. Hub Plastics, Inc., 52 F.3d 608, 612 (6th Cir. 1995). On August 21, 1996, St. Francis distributed campaign Fourth, we find that St. Francis has established an issue of literature to its employees stating, in relevant part: material fact as to the source of the Biddle letter. There appears to be no dispute, at least at this juncture, that Biddle While bargaining goes on, wages, benefits and working wrote and signed the letter. However, St. Francis offered conditions typically remain as they have been until an evidence that the Union was responsible for mailing the letter agreement has been reached. to the employees. Contrary to the Board, we do not believe that most employees would assume that the letter was Union- .... sponsored propaganda simply because it addressed an issue that the Union had raised in earlier campaign literature. Collective bargaining is a gamble — with your wages, Likewise, although the Biddle letter states that the Union had benefits and working conditions on the table . . . . helped Biddle fight for “[her] rights,” the letter does not Collective bargaining means that you could possibly end suggest that the Union had any involvement in drafting, up with more, the same, or less than you have now. sponsoring, or circulating her letter. Cf. Gormac, 190 F.3d at (Emphasis in original.) 749. No Union insignia appeared on the letter or the envelope, the letter was handwritten, and only Biddle’s return In a September 4, 1996, memorandum to employees, Storer address appeared on the envelope. noted that employees had inquired about the bargaining process following the August 21 memorandum. The The fifth factor also weighs in favor of St. Francis, albeit September 4 memorandum, in question-and-answer format, somewhat less strongly than the third or fourth factors. The included the following description of bargaining: second election was relatively close, with 68 employees voting for the Union, 61 voting against the Union, and six QUESTION: The union said negotiations mean we challenged votes. Even ignoring the challenged ballots, if the keep what we have and change what we Biddle letter affected the vote of four employees, it impacted do not like. Is this true?

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[ANSWER:] Negotiations are a process of give and that employees did not actually receive the letter until two take. If you have a union, it would mean days before the election, at most, and perhaps one day. We you are willing to give them your wages, explicitly disapproved of such conduct in an analogous case benefits, and other things you have now. where a letter overstating the company’s profits was mailed The union will bring these things to the to employees three days before an election. Dayton Hudson Facility and negotiate. In the end you Dep’t Store Co. v. NLRB, 79 F.3d 546, 551 (6th Cir. 1996). could end up with more, the same, or less than what you have now. The second factor is St. Francis’s opportunity to respond to the alleged misrepresentations. We reject the Board’s The union may say you will get more, contention that St. Francis had an adequate opportunity to but there are no guarantees. Again, address the management raise issue because St. Francis negotiations involve a process of give circulated a letter to all employees one week before the and take and YOU COULD LOSE. election. The Biddle letter appeared after St. Francis’s letter and raised a serious question as to the veracity of St. Francis’s St. Francis distributed a similar memorandum on September earlier representations. Thus, our analysis focuses on St. 24, 1996, stating that employees “must negotiate your wages, Francis’s opportunity to respond to the Biddle letter, in benefits, and working conditions through the bargaining particular, rather than its opportunity to address the general process where you could gain, stay the same or lose.” management raise issue. Another pro-management leaflet of uncertain origin warned employees not to: We first note that the nature of the alleged misrepresentations, which directly challenged St. Francis’s FORGET that everything will start at “0” when the overall credibility, may well have undermined St. Francis’s contract negotiations begin!! We could be GIVING UP ability to develop an effective response. While St. Francis what we take for granted . . . ACCUMULATIVE PTO, could have undermined Biddle’s credibility by publicizing the DRESS DOWN DAYS, ETC. . . . Things could get a lot true reason for her discharge, it chose not to do so out of WORSE instead of better! concern for Biddle’s privacy. St. Francis presented to the Regional Director an affidavit from its Human Resources Based on this evidence, the hearing officer found that Director, Joan Schmidt, stating that she learned of the Biddle Storer had stated that bargaining would start “from zero” and letter one day before the election. In a separate letter to the employees would need to “bargain up” to regain the benefits Regional Director, St. Francis explained that “Storer and they already had. While some literature used more balanced other managers were able to respond to some questions from language, the pro-management leaflet from an unidentified employees in the day or two preceding the election about the source used the “start at ‘0’” phrase. The officer held that statements made in Biddle’s letter . . . .” (Emphasis added.) these oral and written statements constituted an unlawful This evidence suggests that St. Francis may have had at least threat to reduce employee benefits and begin bargaining at some opportunity to address the Biddle letter before the zero if the employees voted for Union representation. The election. The direction in which this second factor points is, Board adopted these findings. therefore, unclear.

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deceptive manner in which it was made, a manner which 2. renders employees unable to evaluate the forgery for what it is. St. Francis contends that it properly advised employees about the potential consequences of choosing Union Id. at 133 (footnotes omitted), quoted in Dayton Hudson representation, asserting that there was no evidence to support Dep’t Store Co. v. NLRB, 987 F.2d 359, 364-65 (6th Cir. the Board’s conclusion that Storer threatened to reduce 1993). We carved out a narrow exception to Midland benefits. The Board insists that this issue is one of witness National in Van Dorn, holding: credibility, and that the employees’ testimony demonstrated St. Francis’s intent to adopt a regressive bargaining posture. There may be cases where no forgery can be proved, but where the misrepresentation is so pervasive and the It is not unlawful for an employer to adopt a hard deception so artful that employees will be unable to bargaining posture in labor negotiations. To the contrary, separate truth from untruth and where their right to a free hard bargaining is “countenanced by the NLRA as an and fair choice will be affected. We agree with the inevitable aspect of labor-management relations.” NLRB v. Board that it should not set aside an election on the basis Gibraltar Indus., Inc., 653 F.2d 1091, 1096 (6th Cir. 1981). of the substance of representations alone, but only on the Thus, an employer may represent during an election campaign deceptive manner in which representations are made. that it will adopt a hard bargaining posture if a union is elected. Such a prediction, taken alone, does not interfere 736 F.2d at 348. with the employees’ free and fair choice. We apply this standard by assessing a number of factors, On the other hand, where an employer “convey[s] the including: (1) the timing of the misrepresentation; (2) message that a consequence of the selection of the union whether the employer had an opportunity to respond; (3) the would be the discontinuance of existing benefits and a ‘start nature and extent of the misrepresentation; (4) whether the from scratch,’” such a statement may have a coercive effect source of the misrepresentation was identified; and (5) that violates the NLRA. Surprenant Mfg. Co. v. NLRB, 341 whether there is evidence that employees were affected by the F.2d 756, 761 (6th Cir. 1965). In assessing such a misrepresentation. Gormac, 190 F.3d at 747 (citing representation, the Board must consider the timing of the Mitchellace, Inc. v. NLRB, 90 F.3d 1150, 1155 (6th Cir. statement, the opportunity of the union to respond, and the 1996)). The closeness of the election is an important content of the union’s responses. Automation and consideration in evaluating the fifth factor. See id. None of Measurement Div., Bendix Corp. v. NLRB, 400 F.2d 141, 146 the factors, standing alone, is dispositive. (6th Cir. 1968). We are satisfied that St. Francis presented evidence raising, The Board’s finding that St. Francis threatened to decrease at a minimum, material factual disputes as to at least four of or eliminate existing benefits before bargaining began is not these five factors. If proven, this evidence would justify supported by substantial evidence on the record as a whole. setting aside the second election. First, the timing of the First, Storer’s admitted statement that negotiations would start Biddle letter cuts in favor of St. Francis. St. Francis presented “from zero” or “from scratch” was—taken alone—a evidence that the Biddle letter was mailed three days before permissible prediction of a hard bargaining posture. The the election directly to the employees’ homes, rather than hearing officer nevertheless couched his conclusion of an being distributed at the workplace. It is reasonable to infer

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unlawful threat in terms of “credibility,” explaining that he to conduct a review consistent with our decision in Van Dorn found the testimony of Rose and Kimmet more believable and its progeny. than Storer’s testimony. We see no reason to disturb this credibility determination. However, the testimony of Rose The Board argues that the Regional Director correctly held and Kimmet does not support a finding that Storer threatened that Van Dorn did not require an evidentiary hearing in this to reduce or eliminate benefits before bargaining began. We case because the Biddle letter was not forged or deceptive. It recognize that our review of the Board’s inferences from the is the Board’s position that the employees could recognize the factual evidence “‘is limited to the determination of Biddle letter as Union propaganda given the letter’s content reasonableness—not rightness.’” NLRB v. Kentucky May and the fact that the Union had previously publicized the pay Coal Co., 89 F.3d 1235, 1242 (6th Cir. 1996) (quoting NLRB raise issue in its campaign. v. Paschall Truck Lines, Inc., 469 F.2d 74, 76 (6th Cir.1972)). We find, however, that the Board’s inference from the We review a Board’s decision to uphold or set aside an employees’ testimony was unreasonable. Rose’s and election in light of campaign misrepresentations for abuse of Kimmet’s testimony—that employees would need to discretion. Van Dorn, 736 F.2d at 347. The Board abuses its negotiate to achieve their current benefits once bargaining discretion if it refuses to grant an evidentiary hearing when began—merely explained the permissible bargaining “from material issues of fact exist as to whether a fair election was zero” statement in more concrete terms. held. However, we will remand a case for an evidentiary hearing only where “an employer’s objections and supporting Even assuming arguendo that Storer did threaten during the proofs indicate that there exist material, factual disputes with August 6 open forum that employee benefits would be the Regional Director’s report which, if proved, demonstrate reduced or eliminated before negotiations began, the timing that the election should be overturned.” Colquest Energy, of this statement and later events remedied any possible 965 F.2d at 119; see also NLRB v. Gormac Custom Mfg., Inc., coercive effect. The statement was made to a limited number 190 F.3d 742, 746 (6th Cir. 1999). of employees who chose to attend the open forum almost two months before the election, giving the Union ample We adhere to the standards articulated under Midland opportunity to respond. As it happened, no response was National Life Insurance Co., 263 N.L.R.B. 127 (1982), and necessary because St. Francis’s own campaign literature Van Dorn, 736 F.2d 343, in evaluating whether campaign distributed after August 6 obviated any threat to reduce or literature unlawfully interfered with the employees’ free eliminate benefits before bargaining began. That literature, choice in a representation election. In Midland National, the which was addressed to all employees, explicitly stated that Board adopted the following rule: employees could expect to remain at their current levels of pay and benefits during negotiations but could ultimately lose [W]e will no longer probe into the truth or falsity of the or gain benefits as a result of the bargaining process. parties’ campaign statements, and . . . we will not set Contrary to the hearing officer’s suggestion, the reference in elections aside on the basis of misleading campaign one piece of literature to bargaining “from zero” was entirely statements. We will, however, intervene in cases where permissible and was not coercive. a party has used forged documents which render the voters unable to recognize propaganda for what it is. Our rejection of the Board’s finding that St. Francis Thus, we will set an election aside not because of the threatened to reduce or eliminate benefits does not require us substance of the representation, but because of the

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In objecting to the results of the second election, St. Francis to reverse the Board’s decision to set aside the first election, argued to the Regional Director that the Biddle letter included however. That decision properly was based on the totality of misrepresentations that interfered with the employees’ ability circumstances, rather than a single incident. See Contech, to decipher the truth. St. Francis stated that it could offer 164 F.3d at 306. Therefore, we consider all of those evidence that: (1) Biddle’s claim about the raises was untrue; circumstances in reviewing the Board’s decision. (2) that the Union owned the postage meter used to mail the Biddle letter to employees; and (3) that Biddle had been D. discharged for falsifying paid-time-off records. St. Francis argued that Biddle’s misrepresentations were severely St. Francis’s Enforcement of its Uniform Policy damaging to the employer’s credibility on this key campaign issue given Biddle’s former position as a St. Francis human 1. resources secretary, which gave her access to payroll information and thereby bolstered her credibility. The St. Francis’s established guidelines for employee Regional Director, citing our decision in Van Dorn Plastic appearance provided that “[o]ther than name tags and school Machinery Co. v. NLRB, 736 F.2d 343 (6th Cir. 1984), or service pins, absolutely no other badges or buttons shall be rejected the employer’s argument without a hearing, affixed to any employee’s uniform or clothing.” Two concluding that the letter was employees testified that their supervisors instructed them to remove a Union button bearing a written message during the typical campaign propaganda that surfaces almost campaign. Several employees testified that they were also invariably in strongly contested union campaigns. I do instructed to remove purple “smiley face” buttons that were not believe the fact that Biddle had recently been known to express Union support but contained no written discharged from a position as a human resources message. The Union presented evidence that employees secretary made it impossible for employees to ascertain regularly wore other types of buttons, such as sports logos and the value of this particular piece of literature. other symbols, which they were not asked to remove. Both Storer and a St. Francis supervisor testified that St. Francis 2. changed its position shortly after employees started wearing the “smiley face” pins to allow Union supporters to wear St. Francis contends that the Biddle letter had a devastating these pins. St. Francis continued to prohibit the Union pin impact on the outcome of the second election because Biddle bearing a written message. did not acknowledge that she was writing with the Union’s cooperation and because she falsely alleged that management The hearing officer credited the testimony of several had received a raise within the past year. The Biddle letter employees who stated that they were ordered to remove “compounded” her falsehood by discrediting any Union pins from their uniforms and that other types of pins documentary evidence that St. Francis might offer in were permitted in the facility. He also found that response, falsely alleging that check amounts were backdated management had made a conscious decision to permit and the difference was given in a separate check. St. Francis employees to wear the “smiley face” pin a few days after insists that the results of the second election should be set those pins appeared. The hearing officer concluded that St. aside and a new election ordered. In the alternative, St. Francis’s restriction on wearing Union insignia was unlawful Francis argues that the issue should be remanded to the Board because St. Francis failed to demonstrate any special circumstances to justify the restriction. He discounted St.

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Francis’s decision to permit the smiley face pin as “nothing had received a raise since March 1996 and that Storer had not more than an attempt by the Employer to impress employees received a raise since October 1995. Subsequently, a letter with the control it exercises over their right to support a purportedly authored by a former employee of St. Francis’s union.” The Board adopted these findings. human resources department, Shelly Biddle, was mailed to all bargaining unit members at their homes. The letter was 2. postmarked March 17—just three days before the election—and stated as follows: St. Francis argues that it was justified in enforcing its appearance guideline to prohibit employees with patient . . . I was not an eligible voter but I had access to contact from wearing Union pins on their uniforms. It administrative procedures and I know that administration discounts the evidence that employees were permitted to wear did not follow their own policies. Workers were unjustly other kinds of pins on their uniforms, arguing that these pins fired, written up, and threatened for managements [sic] were smaller than the Union pins. Given its decision to own selfish reasons. According to a letter from [St. permit the purple “smiley face” pins shortly after they Francis], no raises were given to management. I can tell appeared, St. Francis contends that its prohibition on pins had you this is not true. Raises were given to certain a de minimis impact, at most. On the other hand, the Board members of management. Not only did they receive a argues that St. Francis failed to demonstrate any special raise, but the amount was back dated and the difference circumstances to justify its prohibition on Union pins. We was given in a separate check. Their inconsistencies not find that substantial evidence supports the Board’s only cost myself and fellow co-workers their jobs, but conclusion. We note that this type of misconduct would created intimidation and fear for our co-workers. likely be insufficient, in and of itself, to justify setting aside an election. However, we consider it as part of the totality of Even the federal government has said that management circumstances surrounding the first election. is not credible. If I could vote I would vote YES and I hope and pray that all employees eligible to vote will do The NLRA protects employees’ “right to self-organization, the same. You now have a second chance to make to form, join, or assist labor organizations, to bargain changes inside St. Francis. Vote yes . . . to start the collectively through representatives of their own choosing, process of change. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” I’m in full support of all St. Francis employees that are 29 U.S.C. § 157. An employer who interferes with these scared, but it’s time we all stand up and stick together. rights engages in an unfair labor practice. Id. § 158(a)(1). If we join together and fight we can win! I am currently fighting for my rights as well as yours and if not for the Wearing union buttons and pins falls within the definition union I could not do it. of “other concerted activities” under section 157 and, therefore, is protected under the NLRA. See Republic I am keeping you in my prayers. Aviation Corp. v. NLRB, 324 U.S. 793, 802-03 (1945). “[W]earing union insignia furthers ‘the right [of employees] St. Francis presented evidence that it learned of this letter one to communicate effectively with one another regarding self- day before the election. organization at the jobsite.’” NLRB v. Autodie Int’l, Inc., 169

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F. Conclusion F.3d 378, 383 (6th Cir. 1999) (quoting Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491 (1978)). However, this right is not In sum, we conclude that substantial evidence supports the absolute. Id. An employer may restrict employees from Board’s determination that St. Francis interfered with the wearing union insignia if it can demonstrate special employees’ free choice during the first election campaign by circumstances that require the restriction to maintain threatening to close the facility if the Union were elected, production and discipline. Republic Aviation, 324 U.S. at prohibiting employees from wearing certain Union support 803-04; Meijer, Inc. v. NLRB, 130 F.3d 1209, 1214 (6th Cir. pins, and enforcing its no-solicitation policy in a 1997). discriminatory manner. Therefore, we will not disturb the Board’s decision to set aside the first election. We have struggled in this circuit in applying Republic Aviation to employer policies that generally prohibit III. The Second Election employees from wearing buttons or pins on their uniforms. Our approach to this issue is somewhat in flux. While it is A. unnecessary to definitively resolve this issue given the facts in this case, a summary of the relevant authority is warranted. The second election was held on March 20 and 21, 1997, more than five months after the first election. Sixty-eight In 1984, a divided panel adopted a per se rule, holding that employees voted in favor of the Union, 61 opposed, and there “where an employer enforces a policy that its employees may were six challenged ballots. On March 28, 1997, St. Francis only wear authorized uniforms in a consistent and filed objections to the second election, and the Regional nondiscriminatory fashion and where those employees have Director overruled the objections without a hearing. The contact with the public, a ‘special circumstance’ exists as a Regional Director certified the Union as the collective matter of law which justifies the banning of union buttons.” bargaining representative of the designated bargaining unit on Burger King Corp. v. NLRB, 725 F.2d 1053, 1055 (6th Cir. April 24, 1997. St. Francis requested NLRB review of the 1984), disagreement recognized by Meijer, 130 F.3d 1209. certification, but the NLRB denied the request on June 16, 1997. On appeal, St. Francis raises only one objection to the We applied Burger King in United Parcel Service, 41 F.3d certification of the second election results. 1068, where we reviewed the Board’s finding that UPS unlawfully disciplined a UPS driver for wearing a union lapel B. pin on his uniform. UPS maintained uniform and personal appearance standards that required drivers to wear “[o]nly The Board’s Failure to Hold a Van Dorn Hearing on the designated uniform items approved by UPS.” Id. at 1069. Biddle Letter The relevant collective bargaining agreement (CBA) authorized UPS to establish “reasonable standards concerning 1. personal grooming and appearance and the wearing of Shortly before the second election, Union literature accused uniforms and accessories.” Id. We first noted that the rule in management of awarding the CEO, Storer, a 14% raise, while Burger King was applicable because the UPS uniformed other employees had received no raises. On March 13, drivers had substantial contact with the public. Id. at 1073. 1997—one week before the second election—St. Francis Proceeding with the Burger King analysis, we concluded that responded with a letter to employees representing that no one UPS did not enforce its uniform policy in a discriminatory

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manner. We noted that UPS had issued “Desert Storm” pins, It appears that St. Francis’s written policy prohibits safe driving pins, United Way pins, and Mack Truck pins, but distribution of literature at any time in areas beyond held that such conduct did not evidence discriminatory immediate patient areas, such as the dining room and other enforcement because the CBA did not restrict UPS’s right to “work area[s].” More importantly, based on Storer’s issue standards for uniforms. Id. Thus, we held that the testimony, St. Francis adopted a policy during the Union employer did not violate the NLRA. See also NLRB v. Mead campaign that was broader than its written policy, prohibiting Corp., 73 F.3d 74, 79 (6th Cir. 1996) (citing United Parcel the posting of literature anywhere in the facility. St. Francis Serv., 41 F.3d 1068). has offered no evidence that these broad prohibitions were necessary to protect patient care or the hospital’s operations, More recently, another divided panel declined to apply the as required under Beth Israel Hospital/Baptist Hospital. Burger King per se rule. In Meijer, 130 F.3d 1209, the Board Nevertheless, the hearing officer assumed that St. Francis’s sought to prohibit Meijer from disciplining employees who no-solicitation policy was valid, and the Board has not argued wore union pins. Id. at 1210. The company permitted its to the contrary. uniformed employees to wear only those pins approved by the company, including buttons promoting certain products or Rather, the Board contends that St. Francis applied a valid services, customer relation program buttons, or buttons no-solicitation policy in a discriminatory manner. An designating union affiliation. Id. at 1210-11. A new store employer that adopts a valid no-solicitation policy may manager at one location prohibited employees from wearing violate the NLRA by discriminating against union solicitation any pins other than name badges, company approved buttons, in enforcing the policy. See Meijer, 130 F.3d at 1212-14; United Way pins, or service recognition pins during a union NLRB v. St. Vincent’s Hosp., 729 F.2d 730, 735 (11th Cir. organizing campaign. Id. at 1211. The manager enforced his 1984); Reno Hilton Resorts, 320 N.L.R.B. 197, 208 (1995). policy and disciplined employees who wore “Union Yes” pins Here, there was ample evidence in the record to support the during the election campaign. Id. Board’s conclusion that anti-Union literature was posted throughout the facility in violation of Storer’s prohibition. St. Meijer argued that the discipline was appropriate under Francis’s argument that the posting of anti-Union literature Burger King. Id. at 1214. The Meijer majority expressed complied with the terms of its written no-solicitation policy skepticism of the per se rule in Burger King. The majority is misplaced. The posting clearly violated Storer’s expansion observed that the Burger King panel did not attempt to of that policy during the Union campaign. Moreover, that reconcile its holding with the Republic Aviation requirement Storer directed managers to remove anti-Union literature once that employers demonstrate special circumstances to justify he learned of its existence is insufficient to undermine the restricting employees’ presumptive right to wear union evidence that such literature was pervasive and at least one insignia. Id. at 1215. The Meijer court distinguished United manager was seen walking by the literature without removing Parcel Service, reasoning that the court based its holding in it. In short, substantial evidence supports the Board’s that case on UPS’s right under the CBA to promulgate determination that St. Francis tolerated the posting of anti- appearance standards. Id. The Meijer majority ultimately Union literature in violation of its stated no-solicitation policy rejected Burger King’s per se rule in favor of the following: and thereby unlawfully discriminated in enforcing its policy. [The right to wear union insignia] can be curtailed if an employer makes an affirmative showing that a special

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know who was responsible for the postings and did circumstance exists which requires restrictions of this everything in its power to remove the anti-Union literature. right in order to maintain production, reduce employee The Board argues that there was no noticeable effort to dissension or distractions from work, or maintain remove the literature, that St. Francis tolerated other types of employee safety and discipline. This right may also be solicitation, and that any effort that St. Francis may have curtailed if the employer makes an affirmative showing made to remove the literature was ineffective. that the union insignia that the employee seeks to wear will negatively impact a certain public image that the “Employer rules prohibiting organizational solicitation are employer seeks to project. not in and of themselves violative of the [NLRA] . . . .” NLRB v. United Steelworkers of Am., CIO, 357 U.S. 357, 361 Id. at 1217. The court enforced the Board’s order because (1958). As a general matter, an employer may adopt a rule Meijer failed to satisfy this burden. Id. prohibiting employee solicitation during working hours. An employer may also prohibit employee solicitation on company However, we recently suggested an arguably more relaxed property after working hours if the employer demonstrates standard than that articulated in Meijer. In Autodie, 169 F.3d that the rule is necessary to maintain production and 378, the NLRB sought to prohibit the employer from discipline; absent such a showing, the solicitation rule is requiring employees to remove union steward pins. The invalid even if it is enforced neutrally against all solicitors. employer had not implemented a general dress code or See Republic Aviation, 324 U.S. at 803 & n.10, 805. uniform requirement and permitted employees to wear informal clothing bearing product and business Patient care concerns partially trump this general rule in the advertisements and logos from other companies. Id. at 384. nonprofit hospital setting. A hospital may ban all solicitation Citing the employer’s burden to demonstrate “special and distribution in immediate patient care areas such as circumstances” to justify its restriction, we noted that this patient rooms, operating rooms, and other locations where burden “is particularly difficult to meet when the employer patients receive treatment. Beth Israel Hosp., 437 U.S. at cannot show that its restrictions . . . comport with an 495. However, to restrict employee solicitation in non-work announced policy of general applicability.” Id. In enforcing areas or distribution of union literature during non-work times the Board’s order, we noted that the employer failed to in non-work areas such as lounges and cafeterias, the hospital demonstrate “either ‘special circumstances’ requiring the must demonstrate that such solicitation would disrupt patient restriction to maintain production and discipline or an care or health care operations. Id. at 495, 507; NLRB v. announced policy of general applicability justifying its Harper-Grace Hosps., Inc., 737 F.2d 576, 578 (6th Cir. restrictions of protected . . . activity.” Id. Thus, we suggested 1984). Thus, if a hospital’s no-solicitation policy applies to that a general uniform policy may justify independently a areas beyond immediate patient care areas, the hospital bears restriction on union pins. We did not address the possible the burden of presenting affirmative evidence to justify the inconsistency between this approach and the Meijer approach. policy in such areas. NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 784-86 (1979). “If the record is somehow incomplete on Nevertheless, it is unnecessary for us to resolve any this point, it is the hospital’s fault for not producing sufficient possible discrepancy between Meijer and Autodie because evidence.” Harper-Grace Hosps., 737 F.2d at 579. neither approach supports St. Francis’s position. There is no dispute that St. Francis consistently prohibited Union pins bearing a written message, as distinguished from the “smiley

20 NLRB v. St. Francis Nos. 98-6297/6401 Nos. 98-6297/6401 NLRB v. St. Francis 21 Healthcare Centre Healthcare Centre

face” pins that it decided to allow. St. Francis has not The policy also prohibited all solicitation, distribution, and articulated, much less demonstrated, any special circumstance sales in “patient care areas,” defined as: to justify this restriction under Meijer. There is no evidence that the restriction was necessary to maintain production, patient/resident rooms, physical therapy, occupational reduce employee dissension, or maintain employee safety or therapy, therapeutic recreation and other treatment discipline. Likewise, despite the existence of a uniform rooms, and hallways and corridors adjacent to any of policy, St. Francis has not made an affirmative showing that those rooms; sitting or waiting rooms and lounges on the Union pins would harm St. Francis’s public image. patients/residents floors that are accessible to and used by Finally, St. Francis is unable to satisfy even the more relaxed patients/residents; the dining room and elevators. Autodie standard because it did not consistently enforce its uniform policy. To the contrary, substantial evidence Storer testified that St. Francis prohibited the posting of any supports the Board’s finding that St. Francis regularly pro-Union or anti-Union literature “throughout the building” tolerated non-Union pins and buttons on employee uniforms during the campaign. He also testified that after he learned although those pins violated St. Francis’s uniform policy. about the anti-Union postings from his secretary, he instructed Unlike the employer in United Parcel Service, St. Francis had managers and directors to remove such materials if they saw not reserved its discretion to authorize certain pins on them. Nevertheless, several employees testified that they employee uniforms. regularly observed anti-Union fliers and posters throughout the facility. One employee testified that she saw the While substantial evidence supports the Board’s decision personnel manager walk past several pieces of anti-Union that St. Francis engaged in misconduct by prohibiting certain literature without removing them. The Union also presented Union pins, this finding alone would be insufficient to set evidence that St. Francis tolerated solicitations for other aside the first election. Again, however, we consider this products and causes, such as Avon products, school benefits, misconduct as part of the totality of circumstances and raffle ticket sales for outside organizations. surrounding the first election. The hearing officer found that although St. Francis’s no- E. solicitation policy was otherwise valid, St. Francis enforced the policy in a discriminatory manner by regularly permitting St. Francis’s Enforcement of its No-Solicitation Policy other types of solicitation in the facility and tolerating the posting of anti-Union literature. 1. 2. St. Francis had a no-solicitation policy prohibiting employees from: St. Francis maintains that it enforced its neutral no- solicitation policy consistently in prohibiting the posting of sell[ing] or distribut[ing] material of any kind, including, both Union and anti-Union literature at its facility. St. Francis but not limited to: leaflets, advertising material, tickets, also contends that because the anti-Union literature subscriptions, and cards, to any other employee when introduced during the hearing was not posted in patient care either employee is on work time. Nor shall any areas, and there was no evidence that the literature was posted employee sell or distribute material of any kind at any during “work time,” the postings did not violate the no- time in any work area of the facility. solicitation policy. In any event, St. Francis insists it did not