1 16-2325-ag(L) NLRB v. Long Island Ass’n for AIDS Care, Inc.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32 .1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
31 st day of August, two thousand seventeen.

Present: JON O. NEWMAN, PIERRE N. LEVAL, ROSEMARY S. POOLER, Circuit Judges

.

_____________________________________________________

NATIONAL LABOR RELATIONS BOARD,

Petitioner

- Cross-Respondent

,

v. 16-2325-ag(L) 16-2782-ag(XAP) LONG ISLAND ASSOCIATION FOR AIDS CARE, INC.,

Respondent-Cross-Petitioner

. 1

_____________________________________________________
Appearing for Petitioner: Ruth E. Burdick, Deputy Assistant General Counsel, National Labor Relations Board (Julie Br oido, Supervisory Attorney, Kyle A. deCant, Attorney, Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, on the brief ), Washington, D.C.

Appearing for Respondent: David R. Ehrlich, Stagg, Terenzi, Confusione & Wabnik, LLP (Debra L. Wabnik, on the brief ), Garden City, NY.

1 The Clerk of Court is respectfully di rected to amend the caption as above.2 Appeal from the National Labor Relations Board.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the National Labor Relations Board be and it hereby is
ENFORCED

.

Before the Court is the July 1, 2016 applic ation of Petitioner-Cross-Respondent National Labor Relations Board (“NLRB”) to enfor ce, and the August 10, 2016 cross-petition of Respondent-Cross-Petitioner Long Island Association for AIDS Care, Inc. (“LIAAC”) to review, the NLRB’s June 14, 2016 decision and order. In that order, the NLRB held that LIAAC violated Section 8(a)(1) of the National Labor Relati ons Act (“NLRA”), 29 U.S.C. § 158(a)(1), by promulgating an unlawful confidentiality agre ement (“Confidentiality Statement”) and by terminating an employee for his refusal to sign the Confidentiality Statement. We assume the parties’ familiarity with the underlying facts, pr ocedural history, and specification of issues for
review.

“We uphold the NLRB’s findings of fact if supported by substantial evidence and the NLRB’s legal determinations if not arbitrary and capricious.” Cibao Meat Prods., Inc. v. NLRB

, 547 F.3d 336, 339 (2d Cir. 2008). LIAAC argues that the Confidentiality Statement did not violate Section 8(a)(1) because: (1) the third pa ragraph of the Confiden tiality Statement only prohibited discussion of non-public information but salaries were public information, and (2) the fourth paragraph only prohibited employee speech to the media as a representative of LIAAC, but not employee speech to the media in an employee’s individual capacity. LIAAC’s interpretations are wholly unpersuasive in light of the broad language of the Confidentiality Statement. Regarding the third paragraph, the NLRB permissibly read it as chilling employee
conversations about salaries beca use salaries were explicitly listed as one of the topics employees were prohibited from discussing. See NLRB v. Vanguard Tours, Inc. , 981 F.2d 62, 67 (2d Cir. 1992). Regarding the f ourth paragraph, there is no la nguage in the Confidentiality Statement limiting its prohibition on talking to th e media to instances in which the employee is acting as LIAAC’s representative versus when th e employee is acting in his or her individual capacity. “Because of the likely chilling effect of [these provisions of the Confidentiality Statement], the [NLRB] may conclude that the [third and fourth paragraphs of the Confidentiality Statement were] unfair labor prac tice[s] even absent evidence of enforcement.”
Id.

“We review for abuse of discretion the [NLRB’s] deci sion” to impose remedies. Serv. Emps. Int’l Union, Local 32BJ v. NLRB , 647 F.3d 435, 449 (2d Cir. 2011). The NLRB did not abuse its discretion in requiring LIAAC to post th e Notice to Employees in this case. The Notice to Employees is commensurate with effectuating the policies of the NLRA. See Virginia Elec. &
Power Co. v. NLRB , 319 U.S. 533, 540 (1943) (explaining a remedial order will withstand our limited scrutiny “unless it can be shown that the or der is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the” NLRA).3 The remaining issues on appeal are disposed of in a per curiam opinion filed this day. Accordingly, the order of the National Labor Relations Board hereby is ENFORCED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk