Case: 15-60669      Document: 00513586285         Page: 1    Date Filed: 07/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                      No. 15-60669                                 FILED
                                                                               July 11, 2016
                                                                              Lyle W. Cayce
NATIONAL LABOR RELATIONS BOARD,                                                    Clerk

              Petitioner,

v.

VCNCL, L.L.C., doing business as Vineyard Court Nursing and
Rehabilitation Center,

              Respondent.




                  Application for Enforcement of an Order of the
                         National Labor Relations Board
                            NLRB No. 15-CA-144945


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       The National Labor Relations Board (the Board) seeks enforcement of its
order requiring Vineyard Court Nursing and Rehabilitation Center (the
Center) to bargain with the Retail, Wholesale and Department Store Union,
AFL-CIO (the Union), which the Board certified as the bargaining
representative of a unit of the Center’s employees. The Center challenges the



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 15-60669
Board’s order, arguing that the Regional Director’s bargaining unit
determination was improper, and that bad faith on the part of the Board
impermissibly tainted the subsequent union representation election.                     We
enforce the Board’s order.
                                             I
       A group of Center employees filed an election petition seeking to
represent a unit of employees for collective bargaining purposes. The proposed
unit included all dietary employees, laundry employees, housekeeping
employees, and Certified Nursing Assistants (CNAs) but excluded Licensed
Practical Nurses (LPNs), Registered Nurses (RNs), professional and technical
employees, office and clerical associates, and guards and supervisors as defined
in the National Labor Relations Act (the NLRA). The Center challenged the
petition on the ground that the unit should include LPNs, RNs, maintenance
employees, activity employees, the social services director, the business office
manager, and some specialty nurses.
       The Board’s Regional Director concluded that the petitioned-for unit was
not an appropriate one, on the ground that it was “not an identifiable group
separate from other employees” and that “most, if not all, of the employees at
the facility have [certain] terms and conditions of employment in common”
with those in the proposed unit. The Regional Director accordingly required
that the unit also include the activity employees, the social services director,
and the maintenance employees, such that the unit would constitute a “service
and maintenance unit.” 1 The approved unit did not include LPNs, RNs, and




       1 The Regional Director initially allowed these employees to “vote subject to
challenge,” but in a subsequent order the unit designation was amended simply to allow those
employees to vote as members of the unit.
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                                        No. 15-60669
the business office manager; the Regional Director stated that the LPNs and
RNs “do not share an overwhelming community of interest with the CNAs.”
       In explaining why CNAs belong in the unit but LPNs do not, the Regional
Director noted that LPNs are “technical employees”; that “LPNs and CNAs do
not perform the same duties despite the fact that they occasionally assist each
other”; that “the CNAs regard the LPNs as their supervisors even if they are
not supervisors as defined by the Act”; and that RNs and LPNs discourage
CNAs from working out of the nurse’s station (where RNs and LPNs work),
even though official policy is that CNAs do so. She concluded that “[g]iven the
differences in their work, and the manner in which they view each other,”
CNAs and LPNs do not share an “overwhelming community of interest with a
service and maintenance unit.” The Center petitioned for review, and the
Board affirmed the decision.
       During the unit representation hearing, the Center’s counsel, Norman
Mott, stated in the presence of the union representative that he was “not . . .
real happy” and felt “irritation” about the fact that some employees had not
provided advance notice to the Center that they had been subpoenaed and
consequently would be unable to work. He further stated: “I’m not sure this is
[8(g)] protected, either.” 2 In response, the Union filed an unfair-labor-practice
charge against the Center a few hours after the hearing, alleging that Mott
had threatened employees with retaliatory action in connection with their
testimony. The Board investigated and issued its own complaint two months
later alleging that the Center had interfered with, restrained, or coerced




       2 See 29 U.S.C. § 158(g) (“A labor organization before engaging in any strike, picketing,
or other concerted refusal to work at any health care institution shall, not less than ten days
prior to such action, notify the institution in writing and the Federal Mediation and
Conciliation Service of that intention . . . . The notice shall state the date and time that such
action will commence.”).
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                                       No. 15-60669
employees in violation of 29 U.S.C. § 158(a)(1). The complaint was settled
without further litigation.
       After the Board conducted a secret-ballot election among the directed
unit of employees, which the Union won 25-18, the Center filed an objection to
the conduct of the election on multiple grounds, including that the “meritless
unfair labor practice charge” had “interfered with and destroyed the requisite
laboratory conditions under which a representation election should be
conducted.” The Regional Director overruled all objections. The Board agreed
and accordingly certified the Union as the bargaining representative of the
proposed unit of employees.
       The Center refused to recognize and bargain with the Union. The Union
filed an unfair-labor-practice charge in response, and the Board’s General
Counsel issued a complaint alleging that the Center had violated §§ 8(a)(1) and
(5) of the NLRA by failing to bargain. The Board granted the General Counsel
summary judgment on its claims, stating that the “representation issues raised
by [the Center] were or could have been litigated in the prior representation
proceeding.” The Board accordingly required the Center to bargain with the
Union upon request. The Center appeals that order on the grounds that the
unit determination was inappropriate and that the Union’s complaint about
counsel’s remark compromised the integrity of the representation election.
                                              II
       “[S]election of an appropriate bargaining unit lies largely within the
discretion of the Board, whose decision, ‘if not final, is rarely to be disturbed.’” 3
“This court’s review of the Board’s determination of an appropriate bargaining




       3S. Prairie Constr. Co. v. Local No. 627, Int’l Union of Operating Eng’rs, 

,
805 (1976) (per curiam) (quoting Packard Motor Co. v. NLRB, 

, 491 (1947)).
                                              4
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                                     No. 15-60669
unit . . . is ‘limited to determining whether the decision is arbitrary, capricious,
an abuse of discretion, or lacking in evidentiary support.’” 4
      “In deciding whether a group of employees is an appropriate bargaining
unit, this court has adopted the ‘community of interests’ analysis. Factors used
to determine a ‘community of interests’ include ‘bargaining history, operational
integration, geographic proximity, common supervisor, similarity in job
function, and employee interchange.’ In assessing the employees’ community
of interests, ‘[t]he Board must consider the entire factual situation, and its
discretion is not limited by a requirement that its judgment be supported by
all, or even most, of the potentially relevant factors.’” 5 “[E]mployees may seek
to organize ‘a unit’ that is ‘appropriate’—not necessarily the single most
appropriate unit.” 6 “A showing that some other unit would be appropriate is
insufficient, for a choice among appropriate units is within the discretion of the
Board.” 7
      We recently explained at length in Macy’s, Inc. v. NLRB 8 the
considerations in reviewing the Board’s determination that a bargaining unit
is appropriate.     We cited with approval the Board’s decision in Specialty
Healthcare & Rehabilitation Center of Mobile, 9 which “clarified the principles
that apply in cases . . . where a party contends that the smallest appropriate
bargaining unit must include additional employees beyond those in the
petitioned-for unit.” 10 We said in Macy’s:



      4   Elec. Data Sys. Corp. v. NLRB, 

, 572-73 (5th Cir. 1991) (quoting NLRB
v. J.C. Penney Co., 

, 375 (5th Cir. 1977)).
        5 

(alteration in original) (citations omitted).
        6 Am. Hosp. Ass’n v. NLRB, 

, 610 (1991).
        7 J.C. Penney 

.
        8 No. 15-60022, 

, at *7-8 (5th Cir. June 2, 2016).
        9 

(2011), enforced sub nom. Kindred Nursing Ctrs. E., L.L.C. v.

NLRB, 

(6th Cir. 2013).
        10 Macy’s Inc., 

, at *4.

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                                       No. 15-60669
       If the Board determines that the smaller unit is readily identifiable
       as a group—based on job classifications, departments, functions,
       work locations, skills, or similar factors—and the employees in the
       smaller unit share a community of interest according to the
       traditional criteria,
              the Board will find the petitioned-for unit to be an
              appropriate unit, despite a contention that employees
              in the unit could be placed in a larger unit which would
              also be appropriate or even more appropriate, unless
              the party so contending demonstrates that employees
              in the larger unit share an overwhelming community
              of interest with those in the petitioned-for unit.
       Specialty Healthcare, 357 NLRB No. 83, at *17. Even before the
       Board decided Specialty Healthcare, the D.C. Circuit had approved
       an “overwhelming community of interest” standard, holding that
       “[i]f the employees in the proposed unit share a community of
       interest, then the unit is prima facie appropriate,” and the
       employer bears the burden of showing that it is “truly
       inappropriate.” Blue Man Vegas, LLC v. NLRB, 

, 421
       (D.C. Cir. 2008). As the court explained, this burden is satisfied
       where there “is no legitimate basis upon which to exclude certain
       employees from [the proposed unit].” Id.; accord Specialty
       Healthcare, 357 NLRB No. 83, at *16. 11
       The Center argues that the employees in the directed unit do not satisfy
the threshold community-of-interest test, because the Regional Director
“provided no rationale for excluding the LPNs from a service and maintenance
unit,” even though “LPNs and CNAs are the primary care givers to all of the




       11 

original); see also Kindred Nursing 

(“[A]s
long as the Board applies the overwhelming community of interest standard only after the
proposed unit has been shown to be prima facie appropriate, the Board does not run afoul of
the statutory injunction that the extent of the union’s organization not be given controlling
weight.” (quoting Specialty 

n.25)); cf. NLRB v. Lundy
Packing Co., 

, 1581 (4th Cir. 1995) (concluding that it would be improper for the
Board to “presum[e] the union-proposed unit proper unless there is ‘an overwhelming
community of interest’ with excluded employees,” because by doing so “the Board effectively
accord[s] controlling weight to the extent of union organization”).
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                                       No. 15-60669
residents [and] [t]he LPNs share a far greater community of interest with the
CNAs than do the dietary or housekeeping or laundry employees.”
       But the Regional Director initially only needed to find “an appropriate
unit.” The Regional Director reasoned that the proposed unit was not “an
identifiable group separate from other employees” but could become one if all
service and maintenance employees were added. 12 The Regional Director’s
conclusion that LPNs are “technical employees” was an indication that LPNs
did not belong in such a unit, unless they shared an overwhelming community
of interest with members of the unit such that its initial contours were
unjustified.
       Furthermore, the employees that the Director added to the proposed unit
share a community of interest with proposed members in ways that LPNs do
not. The Regional Director found that activity employees, who were added to
the proposed unit, “coordinat[e] activities for the residents,” which activities
“are considered part of caring for the residents.” The maintenance employees
“are responsible for maintaining the facilities and equipment” and making
repairs, and the social services director “is responsible for meeting the psycho-
social needs of the residents” by conducting assessments and helping to develop
plans of care. The Regional Director further found that none of these three
categories of employee acts in a supervisory capacity.                   These duties are
consistent with inclusion in a unit based on the provision of “service” to
residents or the responsibility for “maintenance,” and they stand in contrast to
the finding that LPNs are “generally[] considered technical employees” whom




       12 See Specialty 

(“[T]he Board [has] adopted a rule
defining eight appropriate units in acute care hospitals and providing that all other units are
inappropriate absent ‘extraordinary circumstances.’ The rule has generally been understood
to place CNAs working in acute care hospitals in a unit including all nonprofessional service
and maintenance employees.” (citation omitted) (citing 29 C.F.R. § 103.30(a)(8))).
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                                      No. 15-60669
CNAs regard as their supervisors and whose primary responsibility is “patient
care.”
         The Regional Director did not apply the overwhelming-community-of-
interest standard as a “threshold determination” in place of the basic
community of interest standard, as the Center suggests. LPNs have been
excluded from service and maintenance units in past cases based on a lack of
any community of interest, and those cases are not readily distinguishable
from this one. 13      As the Regional Director explained, the directed unit
comprised service and maintenance employees, and “it is not unusual for
technical employees to be organized separately from service and maintenance
employees if the Petitioner so desires.”
         Accordingly, the Board did not abuse its discretion in making its unit
determination.
                                            III
         “The Board has wide discretion in the supervision of representation
elections.    Our review is limited to determining whether its decision was
reasonable and supported by substantial evidence.” 14 “‘[T]he burden is on the
party objecting to the conduct of the representation election to prove that there
has been prejudice to the fairness of the election.’ . . . [S]pecific evidence is
required, showing not only that the unlawful acts occurred, but also that they


          See, e.g., Marian Manor for the Aged & Infirm, Inc., 

, 1094 (2001)
         13

(finding appropriate a service and maintenance unit in a nursing home that included CNAs
but not LPNs); Hillhaven Convalescent Ctr., 

, 1018 n.6 (1995) (classifying
LPNs as “technical employees” and excluding them from a unit including CNAs, even though
LPNs and CNAs shared some community-of-interest factors in common); Pine Manor
Nursing Home, 

, 1656 (1978) (concluding that LPNs are “technical
employees” who “share a community of interest separate from that shared by service and
maintenance employees”); see also Kindred Nursing 

(permitting a
CNA-only unit where unit passed a basic community-of-interest test and no other group,
including LPNs, shared an overwhelming community of interest).
       

. New Orleans Bus Travel, Inc., 

, 384 (5th Cir. 1989) (citing

NLRB v. Rolligon Corp., 

(5th Cir. 1983)).
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                                       No. 15-60669
interfered with the employees’ exercise of free choice to such an extent that
they materially affected the results of the election.” 15 “In evaluating party
conduct during the critical period, the Board applies an objective standard,
under which conduct is found to be objectionable if it has ‘the tendency to
interfere with the employees’ freedom of choice.’” 16
       “We will remand for a hearing when the objecting party raises
substantial and material factual issues supported by a specific proffer of
evidence which, if true, would be sufficient to set aside the election.” 17 Where
“the Board resolved [an] issue at summary judgment without conducting a
hearing, we must accept all allegations presented by [the objecting party’s]
evidence and [make] all reasonable inferences in a light most favorable to [the
objecting party].” 18
       “A statement or prediction rises to the level of a threat if, under the
totality of the circumstances, ‘the employees could reasonably conclude that
the employer is threatening economic reprisals if they support the Union.’” 19
The Center argues that the statement made by its counsel during the



       

. Golden Age Beverage Co., 

, 30 (5th Cir. 1969) (citation omitted)
(quoting Sw. Portland Cement Co. v. NLRB, 

, 134 (5th Cir. 1969)).
        16 Cedars-Sinai Med. Ctr., 

, 597 (2004) (quoting Cambridge Tool &

Mfg. Co., 

, 716 (1995)) (“In deciding whether such interference has occurred
under this standard, the Board considers: (1) the number of incidents of misconduct; (2) the
severity of the incidents and whether they were likely to cause fear among employees in the
bargaining unit; (3) the number of employees in the bargaining unit subjected to the
misconduct; (4) the proximity of the misconduct to the election date; (5) the degree of
persistence of the misconduct in the minds of the bargaining unit employees; (6) the extent
of dissemination of the misconduct among bargaining unit employees; (7) the effect, if any, of
misconduct by the opposing party to cancel out the effects of the original misconduct; (8) the
closeness of the final vote; (9) the degree to which the misconduct can be attributed to the
party.”).
        

. McCarty Farms, Inc., 

, 728 (5th Cir. 1994); see also 29 C.F.R.

§ 102.69(c)(1)(ii).
        18 Trencor, Inc. v. NLRB, 

, 270 (5th Cir. 1997).
        19 Tellepsen Pipeline Servs. Co. v. NLRB, 

, 562 (5th Cir. 2003) (quoting

TRW-United Greenfield Div. v. NLRB, 

, 418 (5th Cir. Feb. 1981)).
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                                        No. 15-60669
representation hearing, about which the Union complained, could not have
constituted an improper threat because it was protected “petitioning speech.”
But the precedent on which the Center relies for that proposition only
establishes that a well-founded lawsuit may not be enjoined as an unfair labor
practice. 20 The Center did not file a lawsuit or take legal action of any kind in
relation to any supposed violation of § 8(g)—counsel merely speculated about
the issue—and in any case, petitioning speech is only protected if it is not
“baseless.” 21 As the Supreme Court has stated in a related context:
       If there is any implication that an employer may or may not take
       action solely on his own initiative for reasons unrelated to
       economic necessities and known only to him, the statement is no
       longer a reasonable prediction based on available facts but a threat
       of retaliation based on misrepresentation and coercion, and as
       such without the protection of the First Amendment. 22
       Threats of legal action, if spurious or otherwise inappropriate, thus may
constitute unfair labor practices: the question is not whether the employer
could conceivably act pursuant to its statement in a lawful manner, but rather
whether “the intended and understood import of th[e] message” 23 is such that
the employee might be led to believe that the employer intends to pursue a
retaliatory end by any means. 24              Moreover, the fact that counsel made


       20  See Bill Johnson’s Rests., Inc. v. NLRB, 

, 743 (1983) (“Although it is not
unlawful under the [NLRA] to prosecute a meritorious action, the same is not true of suits
based on insubstantial claims—suits that lack, to use the term coined by the Board, a
‘reasonable basis.’ Such suits are not within the scope of First Amendment protection.”).
        21 

v. Gissel Packing Co., 

, 618 (1969).
        23 

        24 See, e.g., Iowa Beef Processors, Inc. v. NLRB, 

, 796 (8th Cir. 1977)

(considering statements made at an unfair labor practices hearing by employer’s counsel
suggesting that employee-witnesses could be criminally liable if their testimony at that
hearing revealed that they had been involved in a criminal incident) (“Notwithstanding that
such statements may have been technically correct, we are persuaded that, in violation of
section 8(a)(1) of the [NLRA], they intimidated prospective employee-witnesses in the
exercise of their section 7 rights, which include the right to invoke the board’s processes and
to testify at its proceedings.”).
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                                       No. 15-60669
reference to a provision of law does not mean that he was merely describing
the Center’s legal rights. He also was necessarily implying that the result of
any redress could be adverse to the employees, because an employee who
violates § 8(g) loses various protections against what would otherwise
constitute employer misconduct under the NLRA. 25 Because counsel’s remark
simultaneously communicated personal displeasure and warned of possible
adverse consequences to employees, and because it is far from clear that
counsel was correct or even reasonable to intimate that the behavior of the
testifying employees might have warranted such consequences, it was not
unlawful for the Union to complain that the remark constituted intimidation.
No evidence has been proffered to suggest that the Board’s investigation and
complaint tended to interfere with employee free choice, and accordingly we
need not remand for a hearing. The Board did not abuse its discretion in
overruling the Center’s objection.
                                       *       *      *
            For the foregoing reasons, we ENFORCE the Board’s order.




       25 See 29 U.S.C. § 158(d) (stating that an employee who violates § 8(g) “shall lose his
status as an employee of the employer engaged in the particular labor dispute, for the
purposes of sections 158, 159, and 160”); see also 

(“It is well
settled that employer threats of plant closure, job loss, and loss of promotion in the event of
unionization or support for a union are violative of § 8(a)(1) of the [NLRA]. Section 8(a)(1) is
violated if, under the totality of the circumstances, ‘the employees could reasonably conclude
that the employer is threatening economic reprisals if they support the Union.’” (citations
omitted) (quoting Hendrix Mfg. Co. v. NLRB, 

, 105 (5th Cir. 1963))).
                                              11