*

The Honorable Henry R. Wilhoit, J

Judge for the Eastern District of Kentuck

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

NATIONAL LABOR RELATIONSBOARD,

Petitioner/Cross-Respondent,

v.

ST. FRANCIS HEALTHCARECENTRE,

Respondent/Cross-Petitioner.

On Application for Enforcemen

Review of an Order of the Nation

Nos. 8-RC-15410; 8

Argued: October 

Decided and Filed: M

Before: RYAN and COLE, Cir

District Jud
2 NLRB v. St. Francis

Healthcare Centre

Nos. 98-6297/6401

_________________

COUNSEL

ARGUED: G. Roger King, JONES, DAY, REAVIS &POGUE, Columbus, Ohio, for Respondent. Robert J.Englehart, NATIONAL LABOR RELATIONS BOARD,APPELLATE COURT BRANCH, Washington, D.C., forPetitioner. ON BRIEF: G. Roger King, Brian G. Selden,

JONES, DAY, REAVIS & POGUE, Columbus, Ohio, forRespondent. Robert J. Englehart, Frederick C. Havard, JohnD. Burgoyne, NATIONAL LABOR RELATIONS BOARD,APPELLATE COURT BRANCH, Washington, D.C., forPetitioner.

RYAN, J., delivered the opinion of the court, in which

WILHOIT, D. J., joined. COLE, J. (pp. 35-39), delivered aseparate 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 bargainingrepresentative for certain employees of St. Francis HealthcareCentre. Following two elections, the National LaborRelations Board certified the Union as the bargainingrepresentative. The Board now seeks enforcement of thebargaining order it issued following the second election,which the Union won. St. Francis cross-petitions for reviewof the Board’s decision to set aside the first election, whichthe 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 evidentiaryhearing on St. Francis’s objection to the second election.

Nos. 98-6297/6401 possible that the Board’s determindoes not constitute a violation of thDayton Hudson, 79 F.3d 546 (uphoafter an earlier remand for an evidHudson Department Store Co. v. Cir. 1993)); Van Dorn Plastic Ma302 (6th Cir. 1989) (upholding, on result after a remand and evidentiVan Leer Containers, Inc. v. NLR1991) (same); NLRB v. Monark BoCir. 1986) (same); Bauer Welding v. NLRB, 758 F.2d 308 (8th Cir. 1

In sum, I respectfully concur i

uphold the first election and to reman evidentiary hearing on St. Francletter.
38 NLRB v. St. Francis

Healthcare Centre

Nos. 98-6297/6401

Francis has established its success on four of the factorsarticulated by Mitchellace. For example, although themajority states that St. Francis is favored on the question oftiming, the timing of the letter and some of the othercircumstances of this case are not unlike those in DaytonHudson Department Store Co. v. NLRB, 79 F.3d 546, 551(6th Cir. 1996), in which the court upheld the Board’sdetermination. In Dayton Hudson, a letter with substantial

misrepresentations was mailed to employees three days beforethe election, the writers of the letter were known to be alliedwith the union, but, unlike here, the union won by asignificant margin. See id. at 548, 551. In this case, inaddition, St. Francis became aware of the letter one or twodays before the election, and although it did not respond, itmay have had a sufficient opportunity to do so. See

Mitchellace, 90 F.3d at 1156 (stating that the employer, wholearned of a flyer distributed the day before the election, wasable to effectively respond). As to the third factor, althoughthe centrality of the issues in the alleged misrepresentation tothe representation campaign may be considered, this factorprimarily assesses the extent and “artfulness” of the allegeddeception. Cf. Midland Nat’l Life Ins. Co., 263 N.L.R.B. 127,

133 (1982) (prohibiting the use of forged documents); VanDorn Plastic Machinery Co. v. NLRB, 736 F.2d 343, 348 (6thCir. 1984). The extent of the misrepresentation in this case isdisputed; St. Francis alleges it was significant. Fourth, St.Francis raises a material issue of fact on the source of theletter and whether employees could determine the source.Fifth, whether employees were affected by the allegedmisrepresentation is unclear; St. Francis has provided scantevidence that employees were affected by the letter. Finally,the election’s closeness militates toward holding anevidentiary hearing.

Mindful that no set of factors governs whether or not an

evidentiary hearing is necessary, the material issues raised bySt. Francis direct us to remand for an evidentiary hearing atwhich the Board can resolve these factual questions anddetermine the appropriate result. After this hearing, it is

Nos. 98-6297/6401 

I. Standard of 

A party who seeks to overturn the 

election bears the burden of demowas conducted unfairly. To meet tparty must demonstrate that ‘unwhich interfered with employees’ such an extent that it materially election.’” Contech Div., SPX Cor305 (6th Cir. 1998) (quoting NLRF.2d 194, 196 (6th Cir. 1991)), c(1999). While the Board striveconditions” during representatirecognized that this can be an elusare not automatically voided whperfection.” NLRB v. Duriron CoCir. 1992). 

We review for abuse of 

determination whether a representemployees to exercise free choiceNLRB, 965 F.2d 116, 119 (6th Cfindings of fact are conclusive if evidence. Evidence is substantial reasonable mind, to uphold the [BIndus., Inc. v. NLRB, 39 F.3d 1(quoting Turnbull Cone Baking C295 (6th Cir. 1985)). We must whole, including evidence that rufindings. Id. Deference to the B

particularly appropriate where conthe Board to make credibility deTrucking, Inc. v. NLRB, 821 F.2d 

see also V&S ProGalv, Inc. v. NLRCir. 1999). The Board’s applicatreviewed under the substantial eviBoard’s reasonable inferences may even though the court might ju
4 NLRB v. St. Francis

Healthcare Centre

Nos. 98-6297/6401

different conclusion had the matter been before it de novo.’”V&S ProGalv, 168 F.3d at 275 (citation omitted). 

II. The First Election

A.

St. Francis is an Ohio not-for-profit corporation operating

a rehabilitation hospital and skilled nursing facility in GreenSprings, Ohio. In July 1996, District 1199 of the Union fileda petition with the Board seeking to represent approximately150 full- and part-time service and maintenance employees atSt. Francis’s facility. An election was held on October 3 and4, 1996; 71 employees voted against the Union, 60 voted forthe Union, and there were 10 challenged ballots. 

The Union filed objections to the election with the NLRB

Regional Director. Following a hearing, a hearing officerrecommended that the election be set aside and a new electionbe conducted, based upon three of the Union’s objections.Specifically, the hearing officer found that St. Francis had:(1) threatened that unionization would prevent St. Francisfrom affiliating with a partner, forcing the facility to closewithin 18 months; (2) threatened to reduce or eliminatecurrent employee benefits during the bargaining process; and(3) prohibited employees from wearing pro-Union insignia ontheir uniforms and enforced its no-solicitation policy in adiscriminatory manner. St. Francis appealed this decision tothe Board, which adopted the hearing officer’s findings andrecommendations and ordered a new election.

We proceed to address the Board’s three grounds for

ordering a second election.

Nos. 98-6297/6401 

II.

I also write separately on our d

Board for an evidentiary hearing on the Biddle letter. 

 Although St. Francis bears th

overturn the election, see NLRB v. G190 F.3d 742, 746 (6th Cir. 1999), presented by St. Francis in the licompany, see NLRB v. Valley Bak

(9th Cir. 1993); Prestolite Wire Di

306-307 (6th Cir. 1979). Here, Stof “substantial and material factuawould warrant setting aside the 

102.69(d) (stating that a “hearing respect to those objections or chaldirector concludes raise substanissues”); NLRB v. Tennessee PackF.2d 172, 177-78 (6th Cir. 1967). 

As stated by the majority, in ad

statement, “this court has considerwhether the employer was aware had an opportunity to respomisrepresentation, whether misrepresentation was identifiedevidence that employees actualmisrepresentation.” Mitchellace 1155 (6th Cir. 1996). We also election. See Gormac Custom Mfg

Valley Bakery, 1 F.3d at 773 (“Tparticularly great when the electBristol Spring Mfg. Co., 579 F.2d 

The majority finds that St. Franc

fact on at least four of these five poFrancis raises sufficient issues oholding an evidentiary hearing, 
36 NLRB v. St. Francis

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Nos. 98-6297/6401

testified that Storer stated, for example, that they would “haveto start from zero and work up to regain the benefits” theyhad. These statements do not merely indicate that, as themajority states, the employees “would need to negotiate toachieve their current benefits once bargaining began,” but thatSt. Francis would begin from zero if the workers unionized.See NLRB v. Construction & Gen. Laborers’ Union, LocalNo. 534, 778 F.2d 284, 291 (6th Cir. 1985) (noting that “thespeaker’s intent must be inferred from the circumstances asthey appear to the reasonable person,” and that “assertionsthat the employer will ‘bargain from scratch’ are unfair laborpractices”). Second, the unsigned pro-management leaflet,which stated that the company would begin bargaining at “

0”,

provides additional evidence supporting the Board’sconclusion that the company violated Section 8(a)(1) of theAct. Further, St. Francis’s oral and written statements weremade in the context of a campaign in which other violationsof the Act occurred, including the hallmark violation ofthreatened plant closure. 

We may not reverse the Board’s reasonable inferences

“even though [we] might justifiably have reached a differentconclusion had the matter been before [us] de novo.” TonyScott Trucking, Inc. v. NLRB, 821 F.2d 312, 313 (6th Cir.1987). In light of the above evidence presented to the ALJ, Ibelieve that substantial evidence exists to support the Board’sdetermination. This evidence is such that “‘a reasonable mindmight accept as adequate to support’” the Board’s conclusion.Contech Div., SPX Corp. v. NLRB, 164 F.3d 297, 305 (6thCir. 1998), cert. denied, 120 S.Ct. 64 (1999) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229(1938)). Because we find independent violations of the Act, themajority’s determination of this issue does not requireoverturning the Board’s decision on the first election.Accordingly, I concur in the majority’s resolution of thechallenge to the first election.

Nos. 98-6297/6401 

B.

St. Francis’s Statements Conc

Term Viab

1.

St. Francis’s management decide

partners in the health care industry effectively. The company conducmeetings at which senior manaemployees who chose to attend, sthe company and its financial sipossibility of affiliation. At a Sforum conducted during the Unionemployee asked St. Francis’s CEOa vote for Union representation woa partner. Storer testified before responded by explaining that the mhave any organized labor contr“concerns” about labor organizatioto Storer, he told employees that the to know how it was going and the pwas going to take place.” Anotheopen forum then asked Storer hosurvive without a partner. Accordithat the organization’s current cash allow it to operate for about 18 mo

Employees recalled Storer’s 

September 18 open forum somewhfollows:1. According to Colleen Kimmet

St. Francis needed to affiliate and that “no hospital or institutwith St. Francis if it was affiliation St. Francis would c
6 NLRB v. St. Francis

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Nos. 98-6297/6401

2. Karen Slagle, a housekeeper, testified that “[Storer] said

that if the union got in that other hospitals would notwant to affiliate with us and that financially our doorswould close in a year and a half.” Slagle then respondedto a question from the Union representative:

Q: . . . And so [Storer] told people that hospitals

wouldn’t take you if you voted for the union, is thatwhat you–

A: It wouldn’t be attractive to other hospital

groups. 

3. Melanie Ott, a nurse’s assistant, recalled that Storer

stated that “if the union got in that nobody would beaffiliated with us because they wouldn’t work with aunionized facility. And if it got through that the doorswould close within a year, year and a half, because wecouldn’t stand alone.” 

4. According to Naomi Rose, a patient care technician,

Storer stated “that the alliance would not join with us ifwe was union, and that if we became union St. Franciswould have to close in a year and a half, because nobodywould affiliate with us.” On cross-examination, thefollowing colloquy took place:

Q: . . . [Y]ou understood that his remarks were

based upon the inability of the hospital to affiliate inthe event the union were voted in?

A: Yes, sir.Q: . . . And he expressed his belief that the facility

would not be an attractive candidate for affiliation ifthe union were voted in?

A: Yes, sir. 

Nos. 98-6297/6401 

____________

CONCURRE

____________

R. GUY COLE, JR., Circui

respectfully write separately to ad

I.

First, although I agree with the 

the Board’s decision to set asidsupported by substantial evidenmajority’s rejection, in Part determination that St. Francis thrscratch,” thereby violating Section 

I agree with the majority that the 

to support St. Francis’s position intended to inform employees consequences of union representatmemorandum issued by St. Frabalanced and permissible presenunionization.

However, the record also contain

made impermissible threats regarunion. 

It is well established that “b

zero” or “bargaining from employer representatives violatAct if, in context, they reasonabby employees as a threat of loss leave employees with the impresultimately receive depends upinduce the employer to restore. 

Taylor-Dunn Mfg. Co., 252 N.L.R

ALJ heard testimony from employ
34 NLRB v. St. Francis

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Nos. 98-6297/6401

enforcement of its bargaining order. We REMAND to theBoard to conduct a Van Dorn hearing on St. Francis’s Biddleletter objection to the second election.

Nos. 98-6297/6401 

Q: And for that reason, wi

facility would close?

A: Yes, sir.

Pro-management literature also 

example, Sue Fretz, an RN mapproximately 80 employees, admimanagement a “doctored” Union le

HOW WILL THE UNION HFACILITY CLOSES IT’S [SICTHE UNION KEEPS US HEALTHCARE SYSTEMS ASUPPORT THAT COMEAFFILIATIONS???? EVERYONE WILL BE LOOK

Fretz circulated this leaflet to her highlighting the language concernithat unionization could jeopardizprospects. 

The hearing officer credited the e

Storer’s testimony and concluded about the impact of unionizatexaggerated. Taken in conjunctiothe facility would close within 18 the hearing officer found that Storeclose the facility in violation of NL395 U.S. 575 (1969). The Board adfindings and ordered a new electiofindings. 

2.

St. Francis contends that the r

threat. It maintains that Storer unionization had the potential to d
8 NLRB v. St. Francis

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this prediction was supported with objective evidence,specifically, the “concerns” raised by one potential affiliate.

Section 8(a)(1) of the National Labor Relations Act

(NLRA) prohibits interference, restraint, or coercion ofemployees in the exercise of the right to self-organization.29 U.S.C. § 158(a)(1). 

“The test for determining whether an employer hasviolated section 8(a)(1) is whether the employer’sconduct tends to be coercive or tends to interfere with theemployees’ exercise of their rights. In making thisdetermination, the Board considers the total context inwhich the challenged conduct occurs and is justified inviewing the issue from the standpoint of its impact uponthe employees.”

United Parcel Serv. v. NLRB, 41 F.3d 1068, 1071-72 (6th Cir.1994) (citations omitted). 

Like the Board, we must consider the effect of statements

made during a union election campaign from the employees’perspective, taking into account “the economic dependence ofthe employees on their employers, and the necessary tendencyof the former, because of that relationship, to pick up intendedimplications of the latter that might be more readily dismissedby a more disinterested ear.” Indiana Cal-Pro, Inc. v. NLRB,

863 F.2d 1292, 1299 (6th Cir. 1988) (internal quotation marksand citations omitted). 

Management’s expression of views or opinion is

permissible if the expression contains “no threat of reprisal orforce or promise of benefit.” 29 U.S.C. § 158(c). Thus, theSupreme Court has held that an employer may

make a prediction as to the precise effects he believesunionization will have on his company. In such a case,however, the prediction must be carefully phrased on thebasis of objective fact to convey an employer’s belief asto demonstrably probable consequences beyond his

Nos. 98-6297/6401 

St. Francis contends that th

limitations period under 29 U.S.Cwith its July 1997 refusal to bargawith its March 1998 refusal. The March 3, 1998, refusal constitutlabor practice, and the unfair labor within six months of that refusal. TMarch 1998 refusal was independbecause it fell within one year oduring which time St. Francis obligation to bargain. See Brooks (1954).

We reject St. Francis’s argume

six-month limitations period is proand is therefore “subject to recognZipes v. Trans World Airlines, Inc(1982); see also NLRB v. Babcoc724, 727 (6th Cir. 1983). In NLRInc., 516 F.2d 261, 268 (6th Csuccessive refusals to bargain wcertification constitute independenpurposes of applying the six-monalso Bentson Contracting Co. v. N

n.2 (D.C. Cir. 1991). Moreover, erevisit our holding in Basic Wiraddress the timeliness of the unfgiven our other holdings. The BoFrancis’s request for review of th16, 1997—almost one month bbargaining request. This renders unfair labor practice charge emarefusal to bargain. 

V. 

We DENY St. Francis’s petitio

election, GRANT St. Francis’s psecond election, and DENY the 
32 NLRB v. St. Francis

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Nos. 98-6297/6401

The Board argues as a last resort that St. Francis cannot

challenge the failure to conduct an evidentiary hearing on theBiddle letter objection because St. Francis never asked theBoard for an evidentiary hearing. This argument is bothfactually and legally incorrect. In asking the Board to reviewthe Regional Director’s certification of the second election,St. Francis addressed the Biddle letter, among otherobjections. At the conclusion of its request, St. Francis askedthe Board to either order a rerun election or “hold a hearingand further develop the evidence in this matter.” Moreover,the Board was required to hold a hearing once St. Francissucceeded in raising substantial and material factual issuessurrounding the Biddle letter. “‘[I]n the course ofdetermining whether the Board has abused the discretionentrusted to it by Congress to adjudicate representationdisputes fairly, we must satisfy ourselves that the Board’sorder is the product of procedures which are fundamentallyfair.’” Gormac, 190 F.3d at 746 (quoting Shrader’s, 928 F.2d

at 198).

We conclude, therefore, that the Board abused its discretion

in refusing to grant an evidentiary hearing to evaluate theBiddle letter under Van Dorn and its progeny.

IV. Statute of Limitations

Finally, St. Francis maintains that the Board, and therefore

this court, lacked jurisdiction over the Union’s unfair laborpractice charge because the charge was untimely. On July 14,1997, following the Regional Director’s certification of thesecond election, the Union sent a letter to St. Francisrequesting dates for collective bargaining. In its July 28,1997, response letter, St. Francis refused to bargain andadvised the Union that it intended to seek judicial review ofthe certification. On February 20, 1998, the Union againrequested bargaining. In a March 3, 1998, response letter, St.Francis directed the Union to its earlier refusal. The Unionfiled its unfair labor practice charge with the NLRB onMarch 11, 1998. 

Nos. 98-6297/6401 

control . . . . If there is any implmay or may not take action solefor reasons unrelated to economionly to him, the statement is prediction based on available retaliation based on misrepresenin violation of the NLRA]. 

Gissel Packing Co., 395 U.S. at 6also Indiana Cal-Pro, 863 F.2d succeeds in articulating an objectithe Board bears the burden of prediction was not objective or wa39 F.3d at 114. 

Although the matter is not ent

conclude that we must agree with that Storer threatened facility clos8(a)(1). This threat was compristhat no entity would affiliate with won the election; and (2) that St. longer than 18 months if it failed The parties do not dispute the conthe second prediction. 

Rather, the dispute centers on 

specifically, what Storer said and hstatement. We defer to the Bopredicted that no partner would Francis if the facility elected the Udisturb this credibility determinofficer based upon the cumulativwitnesses and his observations oFrancis has failed to articulate aprediction. St. Francis insists that expressed “concerns” about posFrancis. However, this evidenprediction that no company would Francis if the employees elected a 
10 NLRB v. St. Francis

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statements from the perspective of employees, hisexaggeration of the objective evidence was material. Thus,substantial evidence supports the Board’s finding that Storer’sexaggerated prediction violated section 8(a)(1)’s prohibitionon coercing employees in the exercise of their organizationrights. 

St. Francis argues, in the alternative, that Storer’s

statements occurred too far before the election to interferewith employees’ free and fair choice. Timing is one of theobjective factors that the Board considers in determiningwhether forbidden statements were reasonably likely tointerfere with employees’ free choice. SeeNLRB v. DickinsonPress, Inc., 153 F.3d 282, 286 (6th Cir. 1998). However, it isnot dispositive. Thus, in Peabody Coal Co. v. NLRB, 725F.2d 357 (6th Cir. 1984), we upheld the Board’sdetermination that the employer engaged in misconductduring a representation election by making unsupportedpredictions of plant closure where those predictions occurredthree and four weeks before the election. In this case, thethreat occurred approximately two weeks before the election.Given that threats of facility closure are among the mostflagrant variety of unfair labor practices, DTR Indus., 39 F.3d

at 113, and are likely to be difficult to dispel when viewedfrom the employees’ perspective, we see no reason to disturbthe Board’s finding based on the timing of the threat. 

C. 

St. Francis’s Representations Concerning Bargaining

Posture

1.

During an August 6, 1996, open forum, an employee asked

what benefits would be available if the employees voted forUnion representation. According to Storer, he responded thatbargaining in contract negotiations involves a give and take,that employees may keep something and may lose something,and that “everything is negotiable.” He recalled using the

Nos. 98-6297/6401 the election decisively. The closesecond election, standing alone, maa finding that the Biddle letter actBut we view this evidence in the coelection campaign. St. Francis estafact as to the impact of the BiddUnion lost the first election by an that by which it won the second enot see the Biddle letter during thand (3) the Biddle letter touchcontested issue in the campaign. 

The Board insists that it was u

foregoing analysis in this case becapable of recognizing the Bidpropaganda and accord it the propeContech, 164 F.3d 297, in suppoBoard’s approach is clearly at odprogeny. First, Contech is distingthe alleged misrepresentations in C

letters and there was no emisrepresentation or artful deceptiothe Biddle letter was not readily propaganda because it appeared from a former co-worker, was handleaflet form, and used language sucworkers.” See Dayton Hudson, importantly, labeling material as insulate the material from considSuch an approach would effectiv

because virtually any representatiounion campaign could be charactereven if employees are capable of campaign propaganda—based on misrepresentation in the propagadeceptive that it overcomes skepticism, “resulting in emplocampaign propaganda must absolut52 F.3d at 613. 
30 NLRB v. St. Francis

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The third, and most important, factor favors St. Francis.

See Gormac, 190 F.3d at 748. First, it is undisputed that themanagement raise issue was hotly contested in the daysleading up to the second election. The Union’s campaignliterature suggested that management’s greed was detrimentalto the employees’ work environment and to St. Francis’soverall patient care mission. The management raise issue wasclosely related to one of the central issues in bothcampaigns—St. Francis’s long-term financial viability.Second, the Biddle letter insinuates that St. Francisintentionally lied to its employees by denying that it gaveraises and engaged in deceptive practices by backdating theraises. Thus, the letter challenges St. Francis’s overallcredibility, even apart from the management raise issue. See

NLRB v. Hub Plastics, Inc., 52 F.3d 608, 612 (6th Cir. 1995).

Fourth, we find that St. Francis has established an issue of

material fact as to the source of the Biddle letter. Thereappears to be no dispute, at least at this juncture, that Biddlewrote and signed the letter. However, St. Francis offeredevidence that the Union was responsible for mailing the letterto the employees. Contrary to the Board, we do not believethat most employees would assume that the letter was Unionsponsored propaganda simply because it addressed an issuethat the Union had raised in earlier campaign literature.Likewise, although the Biddle letter states that the Union hadhelped Biddle fight for “[her] rights,” the letter does notsuggest that the Union had any involvement in drafting,sponsoring, or circulating her letter. Cf. Gormac, 190 F.3d at

749. No Union insignia appeared on the letter or theenvelope, the letter was handwritten, and only Biddle’s returnaddress appeared on the envelope. 

The fifth factor also weighs in favor of St. Francis, albeit

somewhat less strongly than the third or fourth factors. Thesecond election was relatively close, with 68 employeesvoting for the Union, 61 voting against the Union, and sixchallenged votes. Even ignoring the challenged ballots, if theBiddle letter affected the vote of four employees, it impacted

Nos. 98-6297/6401 words “start[ing] from scratch” in process. Storer denied stating that ebenefits before bargaining began, ono benefits was the starting point f

The Union presented testimony 

attended the August 6 open forumStorer stating that bargaining staremployees wanted the level of benethey would need to negotiate it anthat [they would] get them.” AccorStorer stated that everything was uwas guaranteed, and employees w“negotiate back up” or “work up t

On August 21, 1996, St. Fran

literature to its employees stating, 

While bargaining goes on, wageconditions typically remain as agreement has been reached. . . . .Collective bargaining is a gambbenefits and working conditioCollective bargaining means thaup with more, the same, or less 

(Emphasis in original.)

In a September 4, 1996, memora

noted that employees had inquiprocess following the August September 4 memorandum, in queincluded the following description 

QUESTION: The union said 

keep what we hado not like. Is th
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[ANSWER:] Negotiations are a process of give and

take. If you have a union, it would meanyou are willing to give them your wages,benefits, and other things you have now.The union will bring these things to theFacility and negotiate. In the end youcould end up with more, the same, orless than what you have now.The union may say you will get more,but there are no guarantees. Again,negotiations involve a process of giveand take and YOU COULD LOSE.

St. Francis distributed a similar memorandum on September24, 1996, stating that employees “must negotiate your wages,benefits, and working conditions through the bargainingprocess where you could gain, stay the same or lose.”Another pro-management leaflet of uncertain origin warnedemployees not to: 

FORGET that everything will start at “0” when the

contract negotiations begin!! We could be GIVING UPwhat we take for granted . . . ACCUMULATIVE PTO,DRESS DOWN DAYS, ETC. . . . Things could get a lotWORSE instead of better!Based on this evidence, the hearing officer found that

Storer had stated that bargaining would start “from zero” andemployees would need to “bargain up” to regain the benefitsthey already had. While some literature used more balancedlanguage, the pro-management leaflet from an unidentifiedsource used the “start at ‘

0’” phrase. The officer held that

these oral and written statements constituted an unlawfulthreat to reduce employee benefits and begin bargaining atzero if the employees voted for Union representation. TheBoard adopted these findings.

Nos. 98-6297/6401 that employees did not actually rdays before the election, at most, explicitly disapproved of such conwhere a letter overstating the comto employees three days before an Dep’t Store Co. v. NLRB, 79 F.3d 

The second factor is St. Francis’

the alleged misrepresentations. contention that St. Francis had an address the management raise icirculated a letter to all employelection. The Biddle letter appeareand raised a serious question as to tearlier representations. Thus, ouFrancis’s opportunity to respond particular, rather than its opportunmanagement raise issue. 

We first note that the 

misrepresentations, which directly overall credibility, may well have ability to develop an effective rescould have undermined Biddle’s crtrue reason for her discharge, it cconcern for Biddle’s privacy. StRegional Director an affidavit frDirector, Joan Schmidt, stating thaletter one day before the election. Regional Director, St. Francis exother managers were able to respoemployees in the day or two precestatements made in Biddle’s letter This evidence suggests that St. Frasome opportunity to address the election. The direction in which ththerefore, unclear. 
28 NLRB v. St. Francis

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deceptive manner in which it was made, a manner whichrenders employees unable to evaluate the forgery forwhat it is.

Id. at 133 (footnotes omitted), quoted in Dayton Hudson

Dep’t Store Co. v. NLRB, 987 F.2d 359, 364-65 (6th Cir.1993). We carved out a narrow exception to MidlandNational in Van Dorn, holding:

There may be cases where no forgery can be proved, butwhere the misrepresentation is so pervasive and thedeception so artful that employees will be unable toseparate truth from untruth and where their right to a freeand fair choice will be affected. We agree with theBoard that it should not set aside an election on the basisof the substance of representations alone, but only on thedeceptive manner in which representations are made. 

736 F.2d at 348.

We apply this standard by assessing a number of factors,

including: (1) the timing of the misrepresentation; (2)whether the employer had an opportunity to respond; (3) thenature and extent of the misrepresentation; (4) whether thesource of the misrepresentation was identified; and (5)whether there is evidence that employees were affected by themisrepresentation. Gormac, 190 F.3d at 747 (citing

Mitchellace, Inc. v. NLRB, 90 F.3d 1150, 1155 (6th Cir.1996)). The closeness of the election is an importantconsideration in evaluating the fifth factor. See id. None of

the factors, standing alone, is dispositive. 

We are satisfied that St. Francis presented evidence raising,

at a minimum, material factual disputes as to at least four ofthese five factors. If proven, this evidence would justifysetting aside the second election. First, the timing of theBiddle letter cuts in favor of St. Francis. St. Francis presentedevidence that the Biddle letter was mailed three days beforethe election directly to the employees’ homes, rather thanbeing distributed at the workplace. It is reasonable to infer

Nos. 98-6297/6401 

2.

St. Francis contends that it pro

about the potential consequenrepresentation, asserting that there the Board’s conclusion that Stobenefits. The Board insists that thcredibility, and that the employeesSt. Francis’s intent to adopt a regr

It is not unlawful for an em

bargaining posture in labor negothard bargaining is “countenanceinevitable aspect of labor-manageGibraltar Indus., Inc., 653 F.2d 10Thus, an employer may represent dthat it will adopt a hard bargainelected. Such a prediction, taken with the employees’ free and fair c

On the other hand, where an 

message that a consequence of twould be the discontinuance of exfrom scratch,’” such a statement mthat violates the NLRA. SurprenaF.2d 756, 761 (6th Cir. 1965)representation, the Board must cstatement, the opportunity of the content of the union’s responMeasurement Div., Bendix Corp. v(6th Cir. 1968). 

The Board’s finding that St. Fran

or eliminate existing benefits befosupported by substantial evidence First, Storer’s admitted statement th“from zero” or “from scratchpermissible prediction of a hard hearing officer nevertheless couc
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unlawful threat in terms of “credibility,” explaining that hefound the testimony of Rose and Kimmet more believablethan Storer’s testimony. We see no reason to disturb thiscredibility determination. However, the testimony of Roseand Kimmet does not support a finding that Storer threatenedto reduce or eliminate benefits before bargaining began. Werecognize that our review of the Board’s inferences from thefactual evidence “‘is limited to the determination ofreasonableness—not rightness.’” NLRB v. Kentucky MayCoal Co., 89 F.3d 1235, 1242 (6th Cir. 1996) (quoting NLRBv. Paschall Truck Lines, Inc., 469 F.2d 74, 76 (6th Cir.1972)).We find, however, that the Board’s inference from theemployees’ testimony was unreasonable. Rose’s andKimmet’s testimony—that employees would need tonegotiate to achieve their current benefits once bargainingbegan—merely explained the permissible bargaining “fromzero” statement in more concrete terms. 

Even assuming arguendo that Storer did threaten during the

August 6 open forum that employee benefits would bereduced or eliminated before negotiations began, the timingof this statement and later events remedied any possiblecoercive effect. The statement was made to a limited numberof employees who chose to attend the open forum almost twomonths before the election, giving the Union ampleopportunity to respond. As it happened, no response wasnecessary because St. Francis’s own campaign literaturedistributed after August 6 obviated any threat to reduce oreliminate benefits before bargaining began. That literature,which was addressed to all employees, explicitly stated thatemployees could expect to remain at their current levels ofpay and benefits during negotiations but could ultimately loseor gain benefits as a result of the bargaining process.Contrary to the hearing officer’s suggestion, the reference inone piece of literature to bargaining “from zero” was entirelypermissible and was not coercive. 

Our rejection of the Board’s finding that St. Francis

threatened to reduce or eliminate benefits does not require us

Nos. 98-6297/6401 to conduct a review consistent with and its progeny. 

The Board argues that the Regio

that Van Dorn did not require an 

case because the Biddle letter was is the Board’s position that the empBiddle letter as Union propaganda and the fact that the Union had preraise issue in its campaign. 

We review a Board’s decision 

election in light of campaign misrediscretion. Van Dorn, 736 F.2d at 

discretion if it refuses to grant an material issues of fact exist as to wheld. However, we will remand hearing only where “an employer’s proofs indicate that there exist matthe Regional Director’s report whithat the election should be overtu965 F.2d at 119; see also NLRB v. G

190 F.3d 742, 746 (6th Cir. 1999)

We adhere to the standards a

National Life Insurance Co., 263 Van Dorn, 736 F.2d 343, in evalliterature unlawfully interfered wchoice in a representation electionBoard adopted the following rule: 

[W]e will no longer probe into tparties’ campaign statements, aelections aside on the basis ostatements. We will, however, ia party has used forged documvoters unable to recognize proThus, we will set an election asubstance of the representatio
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Nos. 98-6297/6401

In objecting to the results of the second election, St. Francis

argued to the Regional Director that the Biddle letter includedmisrepresentations that interfered with the employees’ abilityto decipher the truth. St. Francis stated that it could offerevidence that: (1) Biddle’s claim about the raises was untrue;(2) that the Union owned the postage meter used to mail theBiddle letter to employees; and (3) that Biddle had beendischarged for falsifying paid-time-off records. St. Francisargued that Biddle’s misrepresentations were severelydamaging to the employer’s credibility on this key campaignissue given Biddle’s former position as a St. Francis humanresources secretary, which gave her access to payrollinformation and thereby bolstered her credibility. TheRegional Director, citing our decision in Van Dorn Plastic

Machinery Co. v. NLRB, 736 F.2d 343 (6th Cir. 1984),rejected the employer’s argument without a hearing,concluding that the letter was

typical campaign propaganda that surfaces almostinvariably in strongly contested union campaigns. I donot believe the fact that Biddle had recently beendischarged from a position as a human resourcessecretary made it impossible for employees to ascertainthe value of this particular piece of literature. 

2.

St. Francis contends that the Biddle letter had a devastating

impact on the outcome of the second election because Biddledid not acknowledge that she was writing with the Union’scooperation and because she falsely alleged that managementhad received a raise within the past year. The Biddle letter“compounded” her falsehood by discrediting anydocumentary evidence that St. Francis might offer inresponse, falsely alleging that check amounts were backdatedand the difference was given in a separate check. St. Francisinsists that the results of the second election should be setaside and a new election ordered. In the alternative, St.Francis argues that the issue should be remanded to the Board

Nos. 98-6297/6401 to reverse the Board’s decision to however. That decision properly wcircumstances, rather than a singl

164 F.3d at 306. Therefore, wcircumstances in reviewing the Bo

D.

St. Francis’s Enforcement o

1.

St. Francis’s established gu

appearance provided that “[o]ther or service pins, absolutely no other affixed to any employee’s unifemployees testified that their superemove a Union button bearing a wcampaign. Several employees teinstructed to remove purple “smilknown to express Union support message. The Union presented regularly wore other types of buttonother symbols, which they were nStorer and a St. Francis supervisochanged its position shortly after ethe “smiley face” pins to allow Uthese pins. St. Francis continued bearing a written message. 

The hearing officer credited 

employees who stated that they Union pins from their uniforms anwere permitted in the facilitymanagement had made a conscemployees to wear the “smiley fthose pins appeared. The hearing Francis’s restriction on wearing Unbecause St. Francis failed to circumstances to justify the restri
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Francis’s decision to permit the smiley face pin as “nothingmore than an attempt by the Employer to impress employeeswith the control it exercises over their right to support aunion.” The Board adopted these findings.

2.

St. Francis argues that it was justified in enforcing its

appearance guideline to prohibit employees with patientcontact from wearing Union pins on their uniforms. Itdiscounts the evidence that employees were permitted to wearother kinds of pins on their uniforms, arguing that these pinswere smaller than the Union pins. Given its decision topermit the purple “smiley face” pins shortly after theyappeared, St. Francis contends that its prohibition on pins hada de minimis impact, at most. On the other hand, the Boardargues that St. Francis failed to demonstrate any specialcircumstances to justify its prohibition on Union pins. Wefind that substantial evidence supports the Board’sconclusion. We note that this type of misconduct wouldlikely be insufficient, in and of itself, to justify setting asidean election. However, we consider it as part of the totality ofcircumstances surrounding the first election. 

The NLRA protects employees’ “right to self-organization,

to form, join, or assist labor organizations, to bargaincollectively through representatives of their own choosing,and to engage in other concerted activities for the purpose ofcollective bargaining or other mutual aid or protection.”29 U.S.C. § 157. An employer who interferes with theserights engages in an unfair labor practice. Id. § 158(a)(1). 

Wearing union buttons and pins falls within the definition

of “other concerted activities” under section 157 and,therefore, is protected under the NLRA. See Republic

Aviation Corp. v. NLRB, 324 U.S. 793, 802-03 (1945).“[W]earing union insignia furthers ‘the right [of employees]to communicate effectively with one another regarding selforganization at the jobsite.’” NLRB v. Autodie Int’l, Inc., 169

Nos. 98-6297/6401 had received a raise since March 19received a raise since October 199purportedly authored by a former human resources department, Shelbargaining unit members at their postmarked March 17—just election—and stated as follows:

. . . I was not an eligible votadministrative procedures and I kdid not follow their own policiesfired, written up, and threatened own selfish reasons. AccordinFrancis], no raises were given to you this is not true. Raises members of management. Not raise, but the amount was back was given in a separate check. Tonly cost myself and fellow cocreated intimidation and fear for Even the federal government hais not credible. If I could vote hope and pray that all employeethe same. You now have a schanges inside St. Francis. Voprocess of change.I’m in full support of all St. Frascared, but it’s time we all stanIf we join together and fight we fighting for my rights as well as union I could not do it.I am keeping you in my prayers

St. Francis presented evidence that day before the election. 
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F. Conclusion

In sum, we conclude that substantial evidence supports the

Board’s determination that St. Francis interfered with theemployees’ free choice during the first election campaign bythreatening to close the facility if the Union were elected,prohibiting employees from wearing certain Union supportpins, and enforcing its no-solicitation policy in adiscriminatory manner. Therefore, we will not disturb theBoard’s decision to set aside the first election. 

III. The Second Election

A.

The second election was held on March 20 and 21, 1997,

more than five months after the first election. Sixty-eightemployees voted in favor of the Union, 61 opposed, and therewere six challenged ballots. On March 28, 1997, St. Francisfiled objections to the second election, and the RegionalDirector overruled the objections without a hearing. TheRegional Director certified the Union as the collectivebargaining representative of the designated bargaining unit onApril 24, 1997. St. Francis requested NLRB review of thecertification, but the NLRB denied the request on June 16,1997. On appeal, St. Francis raises only one objection to thecertification of the second election results. 

B.

The Board’s Failure to Hold a Van Dorn Hearing on the

Biddle Letter

1.

Shortly before the second election, Union literature accused

management of awarding the CEO, Storer, a 14% raise, whileother employees had received no raises. On March 13,1997—one week before the second election—St. Francisresponded with a letter to employees representing that no one

Nos. 98-6297/6401 F.3d 378, 383 (6th Cir. 1999) (quNLRB, 437 U.S. 483, 491 (1978)). absolute. Id. An employer may 

wearing union insignia if it circumstances that require the production and discipline. Repub

803-04; Meijer, Inc. v. NLRB, 130 1997). 

We have struggled in this circ

Aviation to employer policies employees from wearing buttons Our approach to this issue is somunnecessary to definitively resolve in this case, a summary of the relev

In 1984, a divided panel adopted 

“where an employer enforces a polonly wear authorized uniformnondiscriminatory fashion and whcontact with the public, a ‘special matter of law which justifies the bBurger King Corp. v. NLRB, 725 1984), disagreement recognized b

We applied Burger King in Unit

1068, where we reviewed the Bunlawfully disciplined a UPS drivepin on his uniform. UPS maintaiappearance standards that requiredesignated uniform items approve

The relevant collective bargaiauthorized UPS to establish “reasonpersonal grooming and appearauniforms and accessories.” Id. We 

Burger King was applicable becdrivers had substantial contact wiProceeding with the Burger King aUPS did not enforce its uniform 
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manner. We noted that UPS had issued “Desert Storm” pins,safe driving pins, United Way pins, and Mack Truck pins, butheld that such conduct did not evidence discriminatoryenforcement because the CBA did not restrict UPS’s right toissue standards for uniforms. Id. Thus, we held that the

employer did not violate the NLRA. See also NLRB v. Mead

Corp., 73 F.3d 74, 79 (6th Cir. 1996) (citing United ParcelServ., 41 F.3d 1068).

More recently, another divided panel declined to apply the

Burger King per se rule. In Meijer, 130 F.3d 1209, the Board

sought to prohibit Meijer from disciplining employees whowore union pins. Id. at 1210. The company permitted itsuniformed employees to wear only those pins approved by thecompany, including buttons promoting certain products orservices, customer relation program buttons, or buttonsdesignating union affiliation. Id. at 1210-11. A new storemanager at one location prohibited employees from wearingany pins other than name badges, company approved buttons,United Way pins, or service recognition pins during a unionorganizing campaign. Id. at 1211. The manager enforced his

policy and disciplined employees who wore “Union Yes” pinsduring the election campaign. Id.

Meijer argued that the discipline was appropriate under

Burger King. Id. at 1214. The Meijer majority expressed

skepticism of the per se rule in Burger King. The majorityobserved that the Burger King panel did not attempt toreconcile its holding with the Republic Aviation requirementthat employers demonstrate special circumstances to justifyrestricting employees’ presumptive right to wear unioninsignia. Id. at 1215. The Meijer court distinguished UnitedParcel Service, reasoning that the court based its holding inthat case on UPS’s right under the CBA to promulgateappearance standards. Id. The Meijer majority ultimately

rejected Burger King’s per se rule in favor of the following:

[The right to wear union insignia] can be curtailed if anemployer makes an affirmative showing that a special

Nos. 98-6297/6401 

It appears that St. Francis’s 

distribution of literature at any immediate patient areas, such as t“work area[s].” More importatestimony, St. Francis adopted a campaign that was broader than its the posting of literature anywhere has offered no evidence that thesnecessary to protect patient care or as required under Beth Israel H

Nevertheless, the hearing officer ano-solicitation policy was valid, anto the contrary. 

Rather, the Board contends that 

no-solicitation policy in a discemployer that adopts a valid nviolate the NLRA by discriminatinin enforcing the policy. See Meij

NLRB v. St. Vincent’s Hosp., 729 1984); Reno Hilton Resorts, 320 NHere, there was ample evidence in Board’s conclusion that anti-Unithroughout the facility in violation Francis’s argument that the postincomplied with the terms of its wriis misplaced. The posting clearly vof that policy during the Union cStorer directed managers to remove he learned of its existence is insuevidence that such literature was manager was seen walking by the liit. In short, substantial evidendetermination that St. Francis toleUnion literature in violation of its sand thereby unlawfully discrimina
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know who was responsible for the postings and dideverything in its power to remove the anti-Union literature.The Board argues that there was no noticeable effort toremove the literature, that St. Francis tolerated other types ofsolicitation, and that any effort that St. Francis may havemade to remove the literature was ineffective. 

“Employer rules prohibiting organizational solicitation are

not in and of themselves violative of the [NLRA] . . . .”NLRB v. United Steelworkers of Am., CIO, 357 U.S. 357, 361(1958). As a general matter, an employer may adopt a ruleprohibiting employee solicitation during working hours. Anemployer may also prohibit employee solicitation on companyproperty after working hours if the employer demonstratesthat the rule is necessary to maintain production anddiscipline; absent such a showing, the solicitation rule isinvalid even if it is enforced neutrally against all solicitors.See Republic Aviation, 324 U.S. at 803 & n.10, 805.

Patient care concerns partially trump this general rule in the

nonprofit hospital setting. A hospital may ban all solicitation

and distribution in immediate patient care areas such aspatient rooms, operating rooms, and other locations wherepatients receive treatment. Beth Israel Hosp., 437 U.S. at

495. However, to restrict employee solicitation in non-workareas or distribution of union literature during non-work timesin non-work areas such as lounges and cafeterias, the hospitalmust demonstrate that such solicitation would disrupt patientcare or health care operations. Id. at 495, 507; NLRB v.

Harper-Grace Hosps., Inc., 737 F.2d 576, 578 (6th Cir.1984). Thus, if a hospital’s no-solicitation policy applies toareas beyond immediate patient care areas, the hospital bearsthe burden of presenting affirmative evidence to justify thepolicy in such areas. NLRB v. Baptist Hosp., Inc., 442 U.S.773, 784-86 (1979). “If the record is somehow incomplete onthis point, it is the hospital’s fault for not producing sufficientevidence.” Harper-Grace Hosps., 737 F.2d at 579. 

Nos. 98-6297/6401 

circumstance exists which requright in order to maintain produdissension or distractions froemployee safety and discipline. curtailed if the employer makes that the union insignia that the will negatively impact a certain employer seeks to project.

Id. at 1217. The court enforced tMeijer failed to satisfy this burden

However, we recently suggested 

standard than that articulated in Me378, the NLRB sought to prohrequiring employees to remove uemployer had not implemented uniform requirement and permiinformal clothing bearing advertisements and logos from othCiting the employer’s burden circumstances” to justify its restrburden “is particularly difficult to cannot show that its restrictionannounced policy of general applithe Board’s order, we noted thademonstrate “either ‘special circrestriction to maintain productiannounced policy of general aprestrictions of protected . . . activitythat a general uniform policy marestriction on union pins. We did inconsistency between this approac

Nevertheless, it is unnecessar

possible discrepancy between Meneither approach supports St. Frandispute that St. Francis consistenbearing a written message, as disti
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face” pins that it decided to allow. St. Francis has notarticulated, much less demonstrated, any special circumstanceto justify this restriction under Meijer. There is no evidencethat the restriction was necessary to maintain production,reduce employee dissension, or maintain employee safety ordiscipline. Likewise, despite the existence of a uniformpolicy, St. Francis has not made an affirmative showing thatthe Union pins would harm St. Francis’s public image.Finally, St. Francis is unable to satisfy even the more relaxedAutodie standard because it did not consistently enforce itsuniform policy. To the contrary, substantial evidencesupports the Board’s finding that St. Francis regularlytolerated non-Union pins and buttons on employee uniformsalthough those pins violated St. Francis’s uniform policy.Unlike the employer in United Parcel Service, St. Francis hadnot reserved its discretion to authorize certain pins onemployee uniforms. 

While substantial evidence supports the Board’s decision

that St. Francis engaged in misconduct by prohibiting certainUnion pins, this finding alone would be insufficient to setaside the first election. Again, however, we consider thismisconduct as part of the totality of circumstancessurrounding the first election. 

E.

St. Francis’s Enforcement of its No-Solicitation Policy

1.

St. Francis had a no-solicitation policy prohibiting

employees from:

sell[ing] or distribut[ing] material of any kind, including,but not limited to: leaflets, advertising material, tickets,subscriptions, and cards, to any other employee wheneither employee is on work time. Nor shall anyemployee sell or distribute material of any kind at anytime in any work area of the facility. 

Nos. 98-6297/6401 The policy also prohibited all solsales in “patient care areas,” defin

patient/resident rooms, physicatherapy, therapeutic recreation rooms, and hallways and corridthose rooms; sitting or waiting patients/residents floors that are patients/residents; the dining roo

Storer testified that St. Francis propro-Union or anti-Union literature during the campaign. He also tesabout the anti-Union postings from managers and directors to remove them. Nevertheless, several empregularly observed anti-Union fliethe facility. One employee tepersonnel manager walk past sevliterature without removing them. evidence that St. Francis toleratproducts and causes, such as Avon and raffle ticket sales for outside o

The hearing officer found that 

solicitation policy was otherwise vthe policy in a discriminatory mannother types of solicitation in the posting of anti-Union literature. 

2.

St. Francis maintains that it 

solicitation policy consistently in both Union and anti-Union literatualso contends that because thintroduced during the hearing was areas, and there was no evidence thduring “work time,” the postingsolicitation policy. In any event, S