United States Court of Appeals

for the Fifth Circuit ____________

No. 22-60584

____________

Renew Home Health, a Division of Maxus Health Care Partners, 

L.L.C., 

Petitioner/Cross-Respondent, 

versus

National Labor Relations Board, 

Respondent/Cross-Petitioner. 

______________________________

Appeal from the National Labor Relations Board

Agency No. 16-CA-260038

______________________________

Before Jones, Stewart, and Duncan, Circuit Judges.

Carl E. Stewart, Circuit Judge: 

Renew Home Health (“Renew”) petitions for review of a National 

Labor Relations Board (“Board”) Decision and Order determining that (1) 

its RN Case Managers are not supervisors exempt from the National Labor 

Relations Act (the “Act”) and that (2) Renew violated § 8(a)(1) of the Act

by: creating an impermissible oral workplace rule, threatening its employees 

for exercising protected activity, interrogating staff about their concerted 

activities, and unlawfully terminating an RN named Ann Bornschlegl, the 

United States Court of Appeals

Fifth Circuit

FILED

March 7, 2024

Lyle W. Cayce

Clerk

Case: 22-60584 Document: 83-1 Page: 1 Date Filed: 03/07/2024
No. 22-60584

2

charging party. The Board cross-applies for enforcement of its Order. For the 

following reasons, both Renew’s and the Board’s petitions are DENIED in 

part and GRANTED in part.

I.

Renew provides in-home nursing, therapy, and aide services across 

the state of Texas. Renew operates multiple branches, including its service 

branch and headquarters in Fort Worth, Texas. In 2019 and 2020, Branch 

Manager Cara Thornwald oversaw Renew’s Fort Worth facility, and Chief 

Operating Officer Phillip Criswell and Director of Nursing Johanna Ray also 

oversaw the branch’s operations in addition to operations at Renew’s other 

branches. Like many Renew employees, Criswell, Ray, and Thornwald are 

experienced medical professionals. Thornwald made hiring, firing, and 

discipline decisions on behalf of Renew with respect to the Fort Worth 

branch. Criswell and Ray shared similar authority and duties and could 

discharge employees from any Renew branch.

A.

In the Spring of 2020, Renew employed around sixty individuals in its 

Fort Worth branch. Its staff contained approximately eight Home Health 

Aides (“HHAs”), thirty Licensed Vocational Nurses (“LVNs”), and a 

dozen Registered Nurse Case Managers (“RNs”). Bornschlegl served as an

RN in Renew’s Fort Worth branch from 2010 until her termination in April 

2020. According to employee records, Bornschlegl was an exemplary 

employee as an RN but often expressed sharp criticism of Renew’s 

leadership.

Case: 22-60584 Document: 83-1 Page: 2 Date Filed: 03/07/2024
No. 22-60584

3

One stark example occurred during an August 2019 training session 

with Renew’s quality assurance (“QA”) department. Bornschlegl made 

comments critical of Renew’s operations and leadership structure in 

response to a solicitation for questions. Penny Rivera, the head of the QA 

department and coordinator of the training session, testified that 

Bornschlegl’s critique “was basically that if they would pay the LVNs more 

money, they could get rid of the QA department, and then they could use the 

QA salaries for the payment of the LVNs.” Rivera reported Bornschlegl to 

Criswell and Ray because she perceived that the comment was disruptive. 

Renew’s leadership then met with Bornschlegl and told her that while she 

had “a right to bring concerns about the fact that the LVNs are doing too 

many visits . . . you just don’t do that kind of thing in” a training setting. 

Renew placed Bornschlegl on an individualized discipline plan (the 

“August 2019 discipline plan”) that required her to “bring any grievances 

she is harboring to her supervisor for resolution and avoid discussing her 

grievances with her coworkers.” The plan warned that failure to comply may 

result in termination. Bornschlegl’s discipline plan was only viewed by 

Criswell, Ray, and Renew’s HR Manager, and Bornschlegl did not share the 

details of the plan with any other employee.

B.

In every branch, Renew holds a weekly case conference to discuss 

patient status. After the onset of COVID-19, Renew held the weekly 

meetings via videoconference because it restricted field staff access to its 

offices. On April 15, 2020, Renew announced that all field staff were required 

Case: 22-60584 Document: 83-1 Page: 3 Date Filed: 03/07/2024
No. 22-60584

4

to treat COVID-19 patients and that they would receive an additional $10 

payment for each patient. On April 16, 2020, Thornwald led a call with 

employees to discuss patient information and the new COVID-19 policies. 

The discussion around the policies quickly became heated.

On the call, Bornschlegl and other employees inquired about personal 

protective equipment (“PPE”) stock, risk compensation, forming a 

dedicated team to treat COVID-19 patients, and lost wages due to the field

staff restrictions at assisted-living facilities. Several employees on the call 

were unsatisfied with Renew’s policies and Thornwald’s responses to their 

questions. Ultimately, Thornwald disconnected from the call while 

Bornschlegl was asking her a question on these issues. That same day, 

Bornschlegl reached out to Thornwald with more questions via instant 

message. Thornwald informed Bornschlegl that they should “try to work 

together as a team to encourage each other thru [sic] rather than create a 

disruption.” At the close of their conversation, Thornwald texted 

Bornschlegl that “I appreciate your ideas/questions, just please bring them 

individually in order to avoid creating a morale problem.”

Thornwald’s responses to other concerned employees relayed a more 

upbeat tone regarding the circumstances. For instance, Thornwald said to

another employee that she “totally understand[s] your concerns/fears! But 

we can not [sic] be getting everyone all worked up in a negative way like 

happened on that call. We need to work as a team to pull together to get thru 

[sic] this hard time . . . hang in there and keep providing the good care you do 

to your patients.”

Case: 22-60584 Document: 83-1 Page: 4 Date Filed: 03/07/2024
No. 22-60584

5

C.

In late April 2020, Bornschlegl began talking with fellow Renew 

employees about Renew’s COVID-19 policies, insufficient hazard pay, and 

concerns over accessing assisted-living facilities. The employees agreed in a 

group text to reach out to leadership about these issues. Bornschlegl 

volunteered to relay the group’s concerns in a signed Kmail message1 to 

management (the “Kmail”). Bornschlegl’s Kmail included the signatures of 

the dozen employees in the group text and asserted that it was a “group 

effort” to outline COVID-19 policy related concerns. However, the Kmail 

erroneously included one employee who did not expressly agree to sign with 

the cohort, Gina Anderton. When Renew questioned Anderton about her 

knowledge of the Kmail, Anderton informed Renew that she had not agreed 

to sign it. In actuality, Anderton’s message, which stated that she was not 

interested in signing the draft, was not delivered to Bornschlegl.

Renew then inquired with individual employees as to the basis of their 

signature of the group message and to what “threats of disciplinary actions 

and terminations that were alluded to in the last line of communication.”

Thornwald reached out to each employee on the signed message via Kmail

and asked whether they fully agreed with the terminology and verbiage in 

Bornschlegl’s Kmail. 

_____________________

1 Kmail is Renew’s internal communications system.

Case: 22-60584 Document: 83-1 Page: 5 Date Filed: 03/07/2024
No. 22-60584

6

D.

On April 28, 2020, Renew’s management again met with Bornschlegl. 

Criswell, Ray, and Thornwald asked for further clarification regarding the 

employees’ coordination before drafting the Kmail. Bornschlegl stated that 

they had formed a group text to discuss the policies. Bornschlegl asked if 

discussing workplace grievances with her coworkers was prohibited and Ray 

responded that Bornschlegl’s August 2019 discipline plan provides “that if 

[she had] any grievances, that we would need for you to come to us and take 

those up with us.”

Criswell then began discussing each of the points raised in the group

Kmail. He then raised the issue that Bornschlegl did not have Anderton’s 

permission to sign her name, and Bornschlegl contended that she did not 

realize that Anderton objected to her inclusion in the message. Renew’s 

leadership theorized that the mix-up may be sufficient grounds to constitute 

discipline under Renew’s falsification policy for signing Anderton’s name

without her consent.

2 Ray informed Bornschlegl that her actions violated her 

August 2019 discipline plan. Ray then read the plan’s requirements section, 

which mandated that Bornschlegl not discuss grievances with her coworkers. 

Criswell then discharged Bornschlegl for violating Renew’s falsification

policy and the August 2019 discipline plan. 

_____________________

2 Prior records indicate that employees previously punished or discharged under 

the falsification policy were penalized for falsifying client records or official business 

records. Examples included recording visits or procedures on patients that did not occur.

Case: 22-60584 Document: 83-1 Page: 6 Date Filed: 03/07/2024
No. 22-60584

7

Bornschlegl then filed a charge with the Board and, after investigation, 

the Board’s General Counsel filed a complaint against Renew. The complaint 

alleged that Renew violated § 8(a)(1) on several counts for the conduct 

described above. Following a four-day hearing, an administrative law judge

(“ALJ”) determined that Renew violated § 8(a)(1) as alleged by the Board’s 

general counsel. Renew filed its objections to the ALJ’s determinations and 

the Board subsequently affirmed the ALJ’s order. Renew then filed the 

instant petition with this court. The Board cross-appealed for enforcement 

of its Order.

II.

We will affirm the Board’s findings of fact if they are supported by 

substantial evidence in the record considered as a whole. UNF W., Inc. v. 

NLRB, 844 F.3d 451, 456 (5th Cir. 2016). We have defined substantial 

evidence as “that which is relevant and sufficient for a reasonable mind to 

accept as adequate to support a conclusion. It is more than a mere scintilla, 

and less than a preponderance.” El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656 

(5th Cir. 2012). While the reviewing court must consider evidence that 

detracts from the Board’s findings, the ALJ’s decision will stand “if a 

reasonable person could have found what the ALJ found,” even if this court 

may have reached a different conclusion had the matter been presented to it 

in the first instance. Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th 

Cir. 1988). The ALJ’s credibility determinations are binding on this court 

“unless one of the following factors exists: (1) the credibility choice is 

unreasonable, (2) the choice contradicts other findings, (3) the choice is 

Case: 22-60584 Document: 83-1 Page: 7 Date Filed: 03/07/2024
No. 22-60584

8

based upon inadequate reasons or no reason, or (4) the ALJ failed to justify 

his choice.” Asarco, Inc. v. NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996). We 

review challenges to the Board’s legal conclusions de novo and its procedural 

and evidentiary determinations for abuse of discretion. Id.; Marathon 

LeTourneau Co. v. NLRB, 699 F.2d 248, 254 (5th Cir. 1983). Likewise, we 

review the Board’s conclusions of supervisory status for support by 

substantial evidence in the record as a whole. See Poly-America, Inc. v. NLRB, 

260 F.3d 465, 479–80 (5th Cir. 2001). 

III.

Renew challenges the Board’s determinations that Renew’s RNs are 

not supervisors under § 2(11) of the Act and that it violated § 8(a)(1) on four 

counts for its conduct in the Spring of 2020. As a threshold question, we first 

address the issue of whether Renew’s RNs have supervisory authority.

3

A. Statutory Supervisor

Section 2(11) of the Act defines a “supervisor” as: 

any individual having authority, in the interest of the employer, 

to hire, transfer, suspend, lay off, recall, promote, discharge, 

assign, reward, or discipline other employees, or responsibly to 

direct them, or to adjust their grievances, or effectively to 

recommend such action, if in connection with the foregoing the 

exercise of such authority is not of a merely routine or clerical 

nature, but requires the use of independent judgment.

_____________________

3 Persons who are supervisors are not protected by the Act. 29 U.S.C. § 152(3); 

NLRB v. Ky. River Cmty. Care, 532 U.S. 706, 711 (2001) (“Supervisors would fall within 

the class of employees [protected under the Act], were they not expressly excepted from 

it.”).

Case: 22-60584 Document: 83-1 Page: 8 Date Filed: 03/07/2024
No. 22-60584

9

29 U.S.C. § 152(11). The Supreme Court has interpreted § 2(11) to establish 

a three-part test:

Employees are statutory supervisors if (1) they hold the 

authority to engage in any 1 of the 12 listed supervisory 

functions, (2) their “exercise of such authority is not of a 

merely routine or clerical nature, but requires the use of 

independent judgment,” and (3) their authority is held “in the 

interest of the employer.”

Ky. River Cmty. Care, 532 U.S. at 713. “Whether an employee is a supervisor 

is a question of fact.” STP Nuclear Operating Co. v. NLRB, 975 F.3d 507, 513 

(5th Cir. 2020). The party asserting supervisory status carries the burden of

proof. Entergy Miss., Inc. v. NLRB, 810 F.3d 287, 295 (5th Cir. 2015). 

On appeal, Renew argues that the Board ignored substantial evidence 

in the record that demonstrated that its RNs are supervisors under the Act. 

Renew asserts that its RNs have the authority to assign work, discipline

employees, recommend hires, and address grievances of LVNs and HHAs. 

It points out that Criswell testified to the RNs’ authority at the administrative 

hearing before the ALJ. Renew further contends that secondary indicia of 

authority, including the job description, organizational structure, and 

provisions of the Texas state regulations governing RNs suggest that they are 

supervisors.

Here, we conclude that Renew has failed to satisfy its burden. Its RNs 

serve in mostly reportorial roles in its patient intake and care system. For 

instance, the RNs cannot assign staff to patients but rather must request the 

staff, subject to management’s approval. The RNs can only recommend 

discipline or suspension of other employees and cannot resolve grievances of 

Case: 22-60584 Document: 83-1 Page: 9 Date Filed: 03/07/2024
No. 22-60584

10

LVNs or HHAs on their own—rather, they must request management to 

transfer the staff member to another patient. They cannot independently hire 

or terminate individuals, as those decisions rest with the branch managers

and other senior leadership at Renew. At best, the RNs’ exercise of any 

supervisory function is limited to a purely clerical or reportorial nature, 

which is insufficient to establish supervisory status. See Ky. River Cmty. Care, 

523 U.S. at 713.

Thus, we conclude that the Board’s determination that Renew’s RNs

are not supervisors under the Act is supported by substantial evidence. See

El Paso Elec. Co., 681 F.3d at 656. The ALJ appropriately discounted 

Criswell’s and Thornwald’s testimony that RNs had authority to discipline 

LVNs and HHAs because the “statements were wholly uncorroborated” by 

any “testimony of RNs who actually disciplined LVNs and HHAs and/or by 

documents memorializing such discipline.” In line with its precedent, the 

Board rejected Renew’s argument that state and federal regulations 

demonstrated that Renew’s RNs had authority to supervise the unlicensed 

HHAs because “statutory schemes other than the NLRA cannot in and of 

themselves establish supervisory status under the NLRA.” Pain Relief Ctrs., 

P.A., Case 10-CA-260563, 2022 WL 580717, at *1 (N.L.R.B. 2022). The 

Board further held that the record was insufficient to show that the 

regulations applied to Renew’s RNs. Therefore, we grant the Board’s 

petition for enforcement as to this determination and continue to discuss the 

Board’s holding that Renew violated § 8(a)(1). 

Case: 22-60584 Document: 83-1 Page: 10 Date Filed: 03/07/2024
No. 22-60584

11

B. Unfair Labor Practices

Section 7 of the Act provides employees the “right to selforganization, to form, join, or assist labor organizations, [and] to bargain 

collectively,” as well as “engage in other concerted activities for the purpose 

of . . . mutual aid or protection.” 29 U.S.C. § 157. The Supreme Court has 

made clear that § 7 applies to non-union employees because they must 

“speak for themselves as best they c[an]” without representation in the 

bargaining process. NLRB v. Wash. Aluminum Co., 370 U.S. 9, 14 (1962). 

Section 8(a)(1) of the Act protects employees exercising their rights to 

organize themselves from unfair labor practices that chill this behavior. 29 

U.S.C. § 158(a)(1). Here, the Board held that Renew conducted the following

unfair labor practices: (1) maintaining an impermissible oral workplace rule, 

(2) threatening economic reprisals for engaging in concerted activity, (3) 

interrogating employees about concerted activity, and (4) unlawfully 

terminating an employee for engaging in protected activity. We address each 

determination in turn below.

i. Oral Workplace Rule

An employer violates § 8(a)(1) when it institutes a workplace rule that 

forbids or discourages its employees from engaging in concerted conduct. See 

Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 208–09 (5th Cir. 2014)

(holding that a workplace rule preventing employees from discussing wage 

information violates § 8(a)(1)). To determine whether a rule violates the Act, 

a court must decide whether the employer’s rule regulating workplace 

conduct chills a reasonable employee’s exercise of their § 7 rights. T-Mobile 

Case: 22-60584 Document: 83-1 Page: 11 Date Filed: 03/07/2024
No. 22-60584

12

USA, Inc. v. NLRB, 865 F.3d 265, 270 (5th Cir. 2017). Precedent established 

by the Board and this court demonstrates that a rule must be communicated 

to multiple employees to constitute a § 8(a)(1) violation. See, e.g., St. Mary’s 

Hosp. of Blue Springs, 346 NLRB 776, 776–77 (2006) (determining that a 

supervisor’s reprimand of one employee does not constitute a workplace 

rule).

Here, the Board determined that Renew maintained an impermissible 

workplace rule beginning in 2019 that “effectively bar[red] employees from 

discussing wages and workplace conditions amongst themselves.” The 

Board held that Renew applied the rule in the August 2019 discipline plan 

when it “threaten[ed] Bornschlegl with further disciplinary action” if she 

continued to discuss workplace matters with her co-workers. It further stated 

that Renew’s leadership enforced the rule after the April 16, 2020 

videoconference by directing her to bring any workplace grievances to 

management because Renew’s leadership “consider[ed] such behaviors . . . 

as an attempt to create a culture of discord or hostile work environment.”

The Board ascertained that “Renew again employed the rule when it fired

Bornschlegl for failing to comply with her August 2019 discipline” plan.

Ultimately, the Board concluded by holding that Bornschlegl’s discipline 

could be reasonably construed as an unlawfully maintained workplace rule 

that prohibited protected conduct under the Act.

Our review, however, indicates that this holding contravenes Board 

precedent. The Board has consistently held that an employer’s policy is only 

a workplace rule if it is communicated to more than one employee or 

Case: 22-60584 Document: 83-1 Page: 12 Date Filed: 03/07/2024
No. 22-60584

13

otherwise conveyed with instructions to disseminate the policy to other 

employees. See, e.g., Flamingo Las Vegas Operating Co., 360 NLRB 243, 243

(2014) (“[W]e do not find that the [employer] promulgated a rule because 

[the supervisor] directed his statements solely at [one employee] and they 

were never repeated to any other employee as a general requirement.”). In 

its decision, the Board cited Teachers AFT New Mexico and briefly concluded 

that Bornschlegl’s discipline could “reasonably be construed as establishing 

a new rule or policy for all employees.”. In Teachers AFT New Mexico, the 

Board reversed the ALJ’s determination that several statements made 

relative to a union election could be reasonably interpreted as a new 

workplace rule because “[t]he record fail[ed] to show that these statements 

. . . were communicated to any other employees or would reasonably be 

construed as establishing a new rule or policy for all employees.” 360 NLRB 

at 438 n.3. 

The Board thus failed to apply its controlling case law in holding that 

Renew maintained an impermissible workplace rule. Furthermore, none of 

the authority the ALJ cited in support of this determination involved a policy

articulated to just one employee. Cf. AFSCME Local No. 5, 364 NLRB 837, 

838–39 (2016) (declaring that a workplace rule issued in “a memorandum to 

all employees” violated § 8(a)(1)). The record confirms that Bornschlegl did 

not discuss the substance of her August 2019 discipline plan with other 

employees. Thus, we conclude that the Board’s determination regarding the 

oral workplace rule lacks sufficient evidence in the record. We therefore deny 

enforcement of the Board’s Order as to its oral workplace rule holding.

Case: 22-60584 Document: 83-1 Page: 13 Date Filed: 03/07/2024
No. 22-60584

14

ii. Impermissible Threat

We have held that an employer violates § 8(a)(1) where “under the 

totality of the circumstances . . . an employee could reasonably conclude that 

the employer is threatening economic reprisals if the employee supports” 

protected conduct. Brown & Root, Inc. v. NLRB, 333 F.3d 628, 634 n.3 (5th 

Cir. 2003). However, an employer does not violate § 8(a)(1) by the

“expressing of any views, argument, or opinion . . . if such expression 

contains no threat of reprisal or force or promise of benefit.” 29 U.S.C. 

§ 158(c). “The test for determining ‘whether an employer has violated 

Section 8(a)(1) is whether the employer’s questions, threats or statements 

tend to be coercive, not whether the employees are in fact coerced.’” Id.

(quoting NLRB v. PNEU Elec., Inc., 309 F.3d 843, 850 (5th Cir. 2002)). The 

analysis is framed from the perspective of the employee and is not contingent 

on “either the motivation behind the remark or its actual effect.” Miller Elec. 

Pump & Plumbing, 334 NLRB 824, 824 (2001).

Here, the Board determined that “Thornwald’s April 16 text message 

to Bornschlegl” was a threat that violated § 8(a)(1). In the text message,

Thornwald said that the April 2020 telephone conference had gotten “a bit 

out of hand with negativity” and instructed Bornschlegl to raise any concerns 

to management “individually in order to avoid creating a morale problem.” 

The Board stated that “[a] reasonable employee would understand the 

message as a threat of discipline or other consequences if she continued to 

discuss workplace concerns with her coworkers.” Thus, it concluded that the 

Case: 22-60584 Document: 83-1 Page: 14 Date Filed: 03/07/2024
No. 22-60584

15

text message “threaten[ed] Bornschlegl with discipline if she discussed work 

matters with her fellow employees.”

In its petition, Renew argues that Thornwald’s message, viewed in 

context, was supportive and not a threat. It asserts that Thornwald sent this 

text in response to Bornschlegl’s inquiries following the chaotic April 16, 

2020 videoconference call. It further contends that the text could not have 

been interpreted as coercive or intimidating because Bornschlegl “openly 

discussed workplace issues with her co-workers after receiving” the message. 

Although the fact that Bornschlegl continued to discuss workplace 

issues with her co-workers after receiving the alleged threat is irrelevant 

under our jurisprudence,4 the ALJ’s determination on this issue is far more 

conclusory as compared to his other holdings. Our deferential standard of 

review applies only when the Board engages in reasoned decision-making. See 

Motor Vehicle Mfgs. Ass’n v. State Farm Mut. Auto. Inc. Co., 463 U.S. 29, 43 

(1983); see also Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638–39 (D.C. 

Cir. 2017). Without sufficient analysis, the Board’s conclusory holding—

that the text message could have been perceived to reference discipline or 

termination if she engaged in protected conduct—cannot be evaluated for its 

plausibility. Cf. Standard Fittings Co., 845 F.2d at 1314 (holding that an ALJ’s 

decision will stand “if a reasonable person could have found what the ALJ 

found”). We thus conclude that the Board’s impermissible threat

determination is not supported by substantial evidence and not entitled to 

_____________________

4 See Brown & Root, Inc., 333 F.3d at 634 & n.3.

Case: 22-60584 Document: 83-1 Page: 15 Date Filed: 03/07/2024
No. 22-60584

16

deference. Consequently, we will not enforce the Board’s order as to the 

threat issue.

iii. Coercive Interrogation

The Act prohibits employers from interrogating employees about 

their concerted activities if the questioning tends to coerce employees to 

refrain from exercising their rights under § 7 of the Act. See UNF W., Inc.,

844 F.3d at 461. To determine whether an interaction between an employer 

and employee constitutes a coercive interrogation, we examine “the totality 

of the circumstances in which the interrogation occurred.” NLRB v. Laredo 

Coca Cola Bottling Co., 613 F.2d 1338, 1342 (5th Cir. 1980). Importantly, the 

analysis “is whether the questioning tends to be coercive, not whether the 

employees are in fact coerced.” NLRB v. Varo, Inc., 425 F.2d 293, 298 (5th 

Cir. 1970). We consider the eight factors established in Bourne v. NLRB, 332 

F.2d 47, 49 (2d Cir. 1964), when analyzing a coercive interrogation charge. 

UNF W., Inc., 844 F.3d at 461. The factors are: 

(1) the background, or history of employer hostility and 

discrimination; (2) the nature of the information the questioner 

seeks; (3) the rank of the questioner in the company hierarchy; 

(4) the place and manner of the interrogation; (5) the 

truthfulness of the employee’s reply; (6) whether the employer 

had a valid purpose in obtaining the information sought about 

the union; (7) whether a valid purpose, if existent, was 

communicated to the employee; and (8) whether the employer 

assured the employee that no reprisals would be forthcoming 

should he or she support the union.

Id. We have found that these factors are “not a mandate for formalistic 

analysis,” but function as “analytical guiding lights” in our inquiry. Id. We 

Case: 22-60584 Document: 83-1 Page: 16 Date Filed: 03/07/2024
No. 22-60584

17

further have stated that “[n]o single factor is determinative and coercive 

interrogation may still be found” even if the factors weigh in the employer’s 

favor. Tellepsen Pipeline Servs. Co. v. NLRB, 320 F.3d 554, 561 (5th Cir. 2003) 

(internal quotation omitted). Lastly, the Board is not required to apply each 

factor to each claim. UNF W., Inc., 844 F.3d at 461–62. 

The alleged violation occurred when Thornwald and Ray reached out 

to each employee named in the Kmail message to ask if they “were aware of 

the verbiage used” by Bornschlegl. Furthermore, the Board concluded that 

Ray’s request to review the group text messages that led to the group Kmail 

at Bornschlegl’s termination meeting violated § 8(a)(1) of the Act. The ALJ 

determined that, based on the totality of the circumstances, Thornwald’s and 

Ray’s authority to discipline and terminate employees—in conjunction with 

the tenor of their inquest into the employees’ protected communications—

crossed the line into coercive questioning. The Board affirmed the ALJ’s 

conclusion because it agreed that while asking the employees if they had 

authorized Bornschlegl to list their names in the Kmail was a legitimate 

question, Renew’s request to see the group text messages was nevertheless 

an unlawful attempt to chill or intrude on the employees’ exercise of their § 7 

rights to discuss workplace conditions.

Renew argues that the Board erred by using the five-factor test laid out 

by the Board in Westwood Healthcare Ctr., 330 NLRB 935, 939 (2001) instead 

of the eight-factor Bourne test. Fiber Glass Sys., Inc. v. NLRB, 807 F.2d 461, 

463 (5th Cir. 1987) (adopting Bourne factors). Renew further asserts that the 

Board incorrectly applied the law to the facts of this case in determining that 

Case: 22-60584 Document: 83-1 Page: 17 Date Filed: 03/07/2024
No. 22-60584

18

Renew historically treated Bornschlegl with hostility, that Ray’s texts were 

not seeking generalized information, and that Renew’s investigation went 

beyond permissible bounds. Renew also points to several cases where we 

have admonished the Board for incorrectly applying the Bourne factors to 

invalidate the Board’s reliance on Westwood.

We again hold that Renew’s arguments are unpersuasive. First, we do 

not require the Board to apply all eight Bourne factors. UNF W., Inc., 844 

F.3d at 461. Renew concedes that the Board applied the five Westwood factors 

to determine that it unlawfully interrogated its employees. Renew further 

recognizesthat the Westwood factors are functionally the same as the first five 

Bourne factors. Furthermore, this court has only admonished the Board for 

holding that a § 8(a)(1) violation occurred without applying any of the factors 

or setting forth any bases for its determination that a coercive interrogation 

occurred. Renew’s assertion that the Board ignored several factors is 

unsupported by the record. For instance, the Board determined that Renew’s 

April 27, 2020 Kmail inquiry was not part of a valid investigation because it 

asked for protected information, which is the sixth Bourne factor. Thus, we 

hold that the Board’s determinations that Renew unlawfully interrogated its 

employees are owed deference. See Brookwood Furniture, 701 F.2d at 464.

iv. Unlawful Discharge

In reviewing an alleged § 8(a)(1) violation based on the unlawful 

termination of an employee, we apply the framework established by the 

Board in Wright Line, 251 NLRB 1083 (1980). New Orleans Cold Storage & 

Warehouse Co. v. NLRB, 201 F.3d 592, 600–01 (5th Cir. 2000). This 

Case: 22-60584 Document: 83-1 Page: 18 Date Filed: 03/07/2024
No. 22-60584

19

framework provides that “an employer’s termination of an employee violates 

Section 8(a)(1) if the employee’s protected conduct was a motivating factor 

in the decision to discharge the employee.” Cordua Rests. Inc. v. NLRB, 985 

F.3d 415, 423 (5th Cir. 2021). The employee’s protected activity must be at 

least “a substantial or motivating factor,” but need not be “the sole 

motivating factor.” Id. (quoting Adams & Assocs., Inc. v. NLRB, 871 F.3d 358, 

370 (5th Cir. 2017)). Where “the record does permit a competing, perhaps 

even equal, inference of a legitimate basis for discipline [or termination], the 

Board could reasonably infer an improper motivation.” NLRB v. McCullough 

Env’t Servs., Inc., 5 F.3d 923, 937 (5th Cir. 1993). Because motive is a fact 

question, we will not “lightly displace the Board’s factual finding of 

discriminatory intent.” Brookwood Furniture, 701 F.2d at 464.

Rather, courts afford “special deference” to the Board’s holding

“where, as here, conflicting evidence require[d] that essential credibility 

determinations be made.” Id. The Board may rely on circumstantial evidence 

to infer that an employee’s protected activity was a motivating factor in an 

employer’s decision to terminate the employee. Elec. Data Sys. Corp. v. 

NLRB, 985 F.2d 801, 804–05 (5th Cir. 1993). This requires the employer to 

prove “as an affirmative defense, that the employer would have fired the 

employee even if the employee had not engaged in the protected activities” 

to avoid liability. Cordua Rests., 985 F.3d at 423–24 (citing NLRB v. Delta 

Gas, Inc., 840 F.2d 309, 313 (5th Cir. 1988)). 

Renew argues that there was no evidence of animus against 

Bornschlegl in its questioning or investigation. It further asserted that it 

Case: 22-60584 Document: 83-1 Page: 19 Date Filed: 03/07/2024
No. 22-60584

20

would have fired Bornschlegl under its falsification policy regardless of 

whether she had engaged in protected conduct because it fired every 

employee that falsified client documents in violation of the policy. Renew 

further contends that the Board improperly distinguished Bornschlegl’s 

termination for falsification from the previous instances of termination.

Once again, Renew misses the mark. The Board’s factual 

determination of discriminatory intent is owed special deference. Brookwood 

Furniture, 701 F.2d at 464. The Board determined that Renew unlawfully

terminated Bornschlegl based on her involvement in protected activity and 

that Renew’s alleged justification for her termination was pretextual. In 

accordance with our precedent, the Board accepted the ALJ’s credibility 

determinations based on conflicting evidence and testimony and held that 

discriminatory intent was present. See Brookwood Furniture, 701 F.2d at 464. 

The Board further rejected Renew’s arguments that it would have 

terminated Bornschlegl for violating the falsification policy because the 

previous employees terminated under that policy had falsified timecards or

visit logs rather than merely signing another employee’s name to an internal 

email. Thus, the Board relied on sufficient evidence to determine that

Bornschlegl’s protected activity was at least a motivating factor in her 

termination. We therefore grant the Board’s petition for enforcement as to 

its unlawful termination holding. 

IV.

In sum, we hold that the Board’s determination that Renew’s RNs are 

not statutory supervisors under the Act is supported by substantial evidence. 

Case: 22-60584 Document: 83-1 Page: 20 Date Filed: 03/07/2024
No. 22-60584

21

We further conclude that the Board’s determinations that Renew violated 

§ 8(a)(1) by conducting coercive investigations and unlawfully terminating 

Bornschlegl are also supported by substantial evidence. However, we hold 

that the Board’s holdings that Renew violated § 8(a)(1) of the Act by issuing 

an impermissible oral workplace rule and by threatening Bornschlegl are not 

supported by substantial evidence considering existing Board precedent. 

Therefore, Renew’s petition is GRANTED in part as to the Board’s 

holdings that Renew instituted an impermissible oral workplace rule and

impermissibly threatened Bornschlegl and DENIED in all other respects.

The Board’s cross-petition for enforcement is correspondingly DENIED in 

part and GRANTED in part.

Case: 22-60584 Document: 83-1 Page: 21 Date Filed: 03/07/2024