United States Court of Appeals

For the First Circuit

No. 20-1589

NATIONAL LABOR RELATIONS BOARD,

Petitioner, Cross-Respondent,

v.

MAINE COAST REGIONAL HEALTH FACILITIES, d/b/a Maine Coast 

Memorial Hospital, the sole member of which is Eastern Maine 

Healthcare Systems,

Respondent, Cross-Petitioner.

APPLICATION FOR ENFORCEMENT OF ORDER OF THE NATIONAL LABOR 

RELATIONS BOARD AND CROSS-PETITION FOR REVIEW

Before

Kayatta and Barron, Circuit Judges,

and Smith, District Judge.

Eric Weitz, Attorney, National Labor Relations Board, with 

whom Kira Dellinger Vol, Supervisory Attorney, Peter B. Robb, 

General Counsel, Alice B. Stock, Deputy General Counsel, Ruth E. 

Burdick, Acting Deputy Associate General Counsel, and David 

Habenstreit, Assistant General Counsel, were on brief, for 

petitioner, cross-respondent.

Joshua A. Randlett, with whom Brent A. Singer and Rudman 

Winchell were on brief, for respondent, cross-petitioner.

 Of the District of Rhode Island, sitting by designation.
May 26, 2021
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SMITH, District Judge. We review a decision and order 

of the National Labor Relations Board ("Board" or "NLRB"), which 

concluded that Maine Coast Regional Health Facilities, d/b/a Maine 

Coast Memorial Hospital, the sole member of which is Eastern Maine 

Healthcare Systems ("MCMH"), violated federal labor laws by firing 

an employee for a letter she wrote to the editor of a local 

newspaper. The Board also determined that MCMH committed a 

separate violation by maintaining a media policy prohibiting 

contact between employees and the media. We affirm those 

conclusions. However, we agree with MCMH that the Board improperly 

extended its remedy to MCMH's parent corporation, Eastern Maine 

Healthcare Systems ("EMHS"), which was not a party to the 

proceeding. Thus, we grant the Board's application for 

enforcement, striking from the order the portions of the remedy 

requiring repudiation notices to be posted at locations other than 

MCMH.

I. Background

In 2015, in response to ongoing operating losses, MCMH 

reorganized with EMHS as its sole corporate member. EMHS is a 

healthcare network that maintains similar relationships with 

several other hospitals in Maine. As part of the merger, EMHS

installed its own employees in various management positions at 

MCMH.
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Following the merger, MCMH cancelled the contracts of 

most physicians at the hospital, discharging some and forcing the 

remaining physicians to renegotiate their contracts, leading many 

to resign in protest. Around the same time, concerns about nurse 

staffing levels led to a new collective bargaining agreement with 

the nurses' union. Despite the new agreement, understaffing caused 

by MCMH's failure to replace departing nurses remained a problem 

for union members and others. Although they did not file formal 

grievances, the nurses protested by placing a sticky note on the 

locker of each departed nurse. Additionally, in 2017, leadership 

from the union presented a petition, signed by over sixty 

employees, to management. The petition bemoaned a lack of 

staffing, criticized the administration for inadequately 

supporting nurses, and demanded specific changes to achieve 

compliance with the nurses' contract and to address understaffing.

Karen-Jo Young, an activities coordinator in the 

rehabilitation area of the hospital, became aware of the concerns 

of the nurses' union and the physicians. She was present for 

conversations among nurses, physicians, and other staff regarding 

the effects of the physicians' departures and the nurses' 

understaffing. She also observed the sticky note locker protest. 

Moreover, she felt the effects of the understaffing ripple over to 

her work because her job involved helping with nursing activities. 

Finally, she read articles and letters to the editor in the 
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Ellsworth American, a local newspaper, discussing the labor 

disputes. One article described the nurses' petition and stated 

that, according to a nurses' union steward, the union had tried to 

follow the proper grievance procedures prior to submitting the 

petition.

Young submitted a letter to the editor of the Ellsworth 

American. In her letter, she referenced the previous newspaper 

pieces and expressed support for the nurses and doctors in their 

respective labor disputes. She applauded the nurses for submitting 

their petition, urged management to heed the nurses' staffing 

demands, and opined that they were rightly concerned about risks 

to patient safety posed by understaffing. She also criticized 

management as unduly allegiant to EMHS and out of touch with 

patient care, arguing that these shortcomings negatively affected 

hospital staff and the local community. Young did not discuss her 

letter with any other employee prior to submitting it.

Throughout these events, MCMH maintained the following 

media policy, which EMHS had instituted at all of its subsidiaries:

No EMHS employee may contact or release to news media 

information about EMHS, its member organizations or 

their subsidiaries without the direct involvement of the 

EMHS Community Relations Department or of the chief 

operating officer responsible for that organization. 

Any employee receiving an inquiry from the media will 

direct that inquiry to the EMHS Community Relations 

Department, or Community Relations staff at that 

organization for appropriate handling.
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Just hours after Young's letter was published, MCMH terminated her 

employment, citing the media policy. Prior to Young's discharge, 

no employee had ever been disciplined for violating EMHS's media 

policy. EMHS later revised the policy, adding a "savings clause" 

stating that the prohibition against contact with the media did 

not apply to communications "concerning a labor dispute or other 

concerted communications for the purpose of mutual aid or 

protection protected by the National Labor Relations Act."

General Counsel for the Board brought charges on behalf 

of Young. In the complaint, the respondent was named Maine Coast 

Regional Health Facilities, d/b/a Maine Coast Memorial Hospital. 

Partway through trial before the Administrative Law Judge ("ALJ"), 

though, the General Counsel requested a revision of the name in 

the complaint, citing a desire to enforce remedial measures at 

other EMHS locations. Following an off-the-record discussion

between the parties, MCMH consented to revising the name to Maine 

Coast Regional Health Facilities, d/b/a Maine Coast Memorial 

Hospital, the sole member of which is Eastern Maine Healthcare 

Systems.

The ALJ found that MCMH made the decision to fire Young 

based solely on the letter,1 and furthermore, that the letter was 

1 The ALJ noted that, although management became aware that 

Young had previously been subject to discipline for communications 

to the board of directors regarding employee dissatisfaction prior 
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concerted activity protected by Section 7 of the National Labor 

Relations Act ("NLRA" or "Act"), 29 U.S.C. § 157, as well as union 

activity protected by Section 8(a)(3) of the Act, id. § 158(a)(3). 

Therefore, the ALJ concluded that Young's termination violated 

Sections 8(a)(1) and 8(a)(3) of the Act, id. § 158(a)(1), (3). 

The ALJ further held that MCMH's maintenance of the original media 

policy constituted an independent violation of Section 8(a)(1), 

and that the newly minted savings clause did not cure its 

unlawfulness. On review, the Board affirmed the ALJ's decision 

with one exception. Unlike the ALJ, the Board concluded that the 

addition of the savings clause did cure the unlawfulness of the 

original media policy. Accordingly, the Board ordered MCMH to 

reinstate Young with back pay, cease and desist from violating 

employees' labor rights, and post notices repudiating the previous 

media policy at all EMHS facilities where it had been in place. 

The Board then filed an application in this court for enforcement, 

and MCMH cross-petitioned for review.

II. Standard of Review

We review a decision of the Board for "mistakes of law, 

lack of substantial evidence to support factual findings, and 

to terminating her employment, the decision to discharge was 

finalized before management gained knowledge of the previous 

discipline. Based on this timeline, the ALJ impliedly discredited 

the testimony of an MCMH executive that the discharge was based in 

part on the earlier disciplinary incidents.
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arbitrary or capricious reasoning." Boch Imps., Inc. v. NLRB, 826 

F.3d 558, 565 (1st Cir. 2016) (quotations and citation omitted). 

"Where the Board adopts the conclusions and reasoning of the ALJ, 

we review the ALJ's reasoning as if it were that of the Board." 

Id. "We may not substitute our judgment for the Board's when the 

choice is 'between two fairly conflicting views, even though the 

court would justifiably have made a different choice had the matter 

been before it de novo.'" Yesterday's Child., Inc. v. NLRB, 115 

F.3d 36, 44 (1st Cir. 1997) (quoting Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (1951)).

Because Congress has delegated to the Board the 

authority to implement national labor policy, we give considerable 

deference to the Board's interpretation of the Act so long as it 

is "rational and consistent with the Act." NLRB v. Curtin Matheson 

Sci., Inc., 494 U.S. 775, 786-87 (1990). We use a deferential 

lens even where the Board revises or reverses its previous 

interpretations of the Act, as "[t]he responsibility to adapt the 

Act to changing patterns of industrial life is entrusted to the 

Board." NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975). 

However, "[t]he NLRB cannot depart from its own precedent unless 

it articulates reasons for the departure." NLRB v. Wang Theatre,

Inc., 981 F.3d 108, 112 (1st Cir. 2020) (quoting Good Samaritan

Med. Ctr. v. NLRB, 858 F.3d 617, 640 (1st Cir. 2017)).
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On matters of fact, the Board's findings are conclusive 

"if supported by substantial evidence on the record considered as 

a whole." 29 U.S.C. § 160(e). A finding of substantial evidence 

requires "more than a mere scintilla," and instead must be 

sufficient such that "a reasonable mind might accept [it] as 

adequate to support a conclusion." McGaw of P.R., Inc. v. NLRB, 

135 F.3d 1, 7 (1st Cir. 1997) (quotations and citation omitted). 

We give "great weight" to the ALJ's credibility determinations. 

Quality Health Servs. of P.R., Inc. v. NLRB, 873 F.3d 375, 384 

(1st Cir. 2017) (quotations and citation omitted). 

III. Discussion

1. Whether MCMH Violated the Act

Section 7 of the Act gives employees "the right to selforganization, to form, join, or assist labor organizations, to 

bargain collectively through representatives of their own 

choosing, and to engage in other concerted activities for the 

purpose of collective bargaining or other mutual aid or 

protection." 29 U.S.C. § 157. These rights are protected by 

Section 8, which prohibits various unfair labor practices, two of 

which are at issue here. Under Section 8(a)(1), "[i]t shall be an 

unfair labor practice for an employer . . . to interfere with, 

restrain, or coerce employees in the exercise of the rights 

guaranteed in" Section 7 of the Act. Id. § 158(a)(1). 

Additionally, under Section 8(a)(3), it is an unfair labor practice 
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for an employer "by discrimination in regard to hire or tenure of 

employment . . . to encourage or discourage membership in any 

labor organization." Id. § 158(a)(3). 

The Board found that Young's letter writing was 

concerted activity protected under Section 8(a)(1) and union 

activity protected under Section 8(a)(3). The Board therefore 

concluded that MCMH violated both provisions when it discharged 

her for writing the letter. MCMH takes several stabs at rebuttal, 

but none is fatal.

a. Concertedness

First, MCMH argues that there was insufficient evidence 

to show that Young engaged in concerted activity. Although the 

term "'concerted activity' plainly 'embraces the activities of 

employees who have joined together in order to achieve common 

goals, . . . the precise manner in which particular actions of an 

individual employee must be linked to the actions of fellow 

employees'" is not clear from the statutory text. NLRB v. Portland

Airport Limousine Co., 163 F.3d 662, 665 (1st Cir. 1998) (quoting 

NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 830 (1984)).

The Board's prevailing test for concerted activity is 

set out in Meyers Industries, Inc., 268 N.L.R.B. 493, 497 (1984) 

("Meyers I"), and Meyers Industries, Inc., 281 N.L.R.B. 882, 885 

(1986) ("Meyers II"). There, the Board explained that, in its 

view, "generally, an activity is carried out in a 'concerted'
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manner for purposes of § 7 if it is 'engaged in with or on the 

authority of other employees.'" Five Star Transp., Inc. v. NLRB, 

522 F.3d 46, 51 (1st Cir. 2008) (quoting Meyers I, 268 N.L.R.B. 

at 497). However, the Board allowed that concerted activity can 

also include "conduct engaged in by a single employee." Meyers

II, 281 N.L.R.B. at 885. For instance, concerted activity extends 

to individual actions "seek[ing] to initiate or to induce or to 

prepare for group action, as well as individual employees bringing 

truly group complaints to the attention of management." Id.

at 887; see also id. (noting that "concerted activity" could cover 

"a myriad of [other] factual situations"). Notwithstanding the 

above-quoted language from Meyers I –- "on the authority of other 

employees" -- there is no requirement that concerted actions be 

"specifically authorized" by others. Meyers II, 281 N.L.R.B. 

at 886. Thus, "[t]he critical inquiry is not whether an employee 

acted individually, but rather whether the employee's actions were 

in furtherance of a group concern." Five Star Transp., 522 F.3d 

at 51 (citing Meyers II, 281 N.L.R.B. at 887).

The history behind the Meyers decisions is worth noting. 

In Alleluia Cushion Co., 221 N.L.R.B. 999 (1975), the Board held 

that, where an individual employee raises complaints of "obvious 

mutual concern," the support of other employees could be presumed, 

and concertedness could thus be found even absent "outward 

manifestation[s] of support" from other employees. Id. at 1000. 
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Meyers I rolled back this presumption and held that a finding of 

concerted activity must be based on objective evidence that the 

actions arose from group activity. See 268 N.L.R.B. at 496.

While Meyers II focused on actions directed towards 

management, concerted activity may also arise where employees use 

"channels outside the immediate employee-employer relationship" to 

air shared grievances. Eastex, Inc. v. NLRB, 437 U.S. 556, 565 

(1978). Employee outreach to media outlets and governmental bodies 

has thus been found to be concerted activity. See Five Star 

Transp., 522 F.3d at 48-52 (affirming finding of concerted activity 

where bus drivers, following meeting with union, individually sent 

letters to school district raising group concerns); Allstate Ins. 

Co., 332 N.L.R.B. 759, 759, 765 (2000) (finding concerted activity 

where a group of employees criticized employer in magazine 

interview); see also Mount Desert Island Hosp., 259 N.L.R.B. 589, 

592 (1981) (finding concerted activity pre-Meyers where nurse 

wrote letter to editor after discussions with other staff and 

subsequently circulated a petition that was published by the 

newspaper).

The Board's decision here may stand at the limits of the 

Meyers cases, and arguably takes a step back towards Alleluia's 

presumption of concertedness. Young was not a union member. The 

alleged understaffing of nurses affected her, but only indirectly. 

Most significantly, she did not discuss her plans to write a letter 
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with other employees or receive any specific direction,

authorization, or even encouragement to do so.

Nonetheless, a labor dispute was being waged on multiple 

fronts, including in the court of public opinion. Young knew of 

these labor concerns by word of mouth and from her direct 

experiences of understaffing at the hospital. Furthermore, she 

had read pieces in the Ellsworth American about the dispute; one 

article described the nurses' petition and included an interview 

with a steward of the nurses' union.2 Although no other employee 

had requested or approved Young's letter, many employees had 

expressed support for the cause she championed (increased 

staffing). Those employees had outwardly manifested their support 

through the petition, the sticky note protest, and conversations 

at the hospital. Therefore, Young acted in support of what had 

already been established as a group concern. See Five Star

Transp., 522 F.3d at 51; Meyers I, 268 N.L.R.B. at 496 (providing 

that outward manifestations of support can establish that an issue 

2 Due to the hearsay contained within the newspaper articles, 

the ALJ ruled that they were admitted only for purposes other than 

the truth of the matter asserted. MCMH argues that the newspaper 

articles thus cannot support a finding of concerted activity. 

However, the articles were not used to prove the existence of the 

labor disputes or the nurses' petition, which were established 

through other evidence. Rather, the articles showed how Young 

learned about the petition and demonstrated that public 

discussions regarding the labor disputes were already playing out 

in the newspaper.
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is of group concern). Importantly, hospital employees had utilized

the newspaper to amplify their message. So, by contributing her 

voice to the newspaper platform, Young was acting with her 

coworkers in a meaningful, albeit indirect, way. See Five Star

Transp., 522 F.3d at 51 (noting that concerted activity must 

generally be "engaged in with or on the authority of other 

employees" (quotations and citation omitted)). Section 7 protects 

employees' rights to "assist labor organizations . . . and to 

engage in other concerted activities," 29 U.S.C. § 157, and the 

Board reasonably concluded under its precedent that Young's letter 

fell within that provision's coverage. While the facts here may 

be at the edge of the Board's definition of concerted activity 

from Meyers I and Meyers II, we conclude that the evidence was 

substantial enough to support the Board's finding.3

b. Mixed Motive

MCMH next contends that, even if Young's letter writing 

is deemed a concerted activity, the case should be remanded for 

application of the mixed-motive test from Wright Line, a Division

3 In addition to its findings regarding the unlawfulness of 

Young's termination, the Board also declared that MCMH's original 

media policy, irrespective of Young's termination, violated 

Section 8(a)(1). MCMH contends that if this court overturns the 

finding of concerted activity, the court should consequently 

determine that the original media policy was lawful. Because we 

affirm the finding that Young's letter writing was a concerted 

activity, we need not address this argument. 
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of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced on other 

grounds, 662 F.2d 899 (1st Cir. 1981), approved in NLRB v. Transp. 

Mgmt. Corp., 462 U.S. 393 (1983). In support, MCMH points to a 

recent Board decision expanding the applicability of the Wright 

Line inquiry. See Gen. Motors LLC, 369 N.L.R.B. No. 127, 2020 WL

4193017, at *1-2 (July 21, 2020).

Under the Wright Line test, for mixed-motive cases the 

General Counsel must first "make a prima facie showing 'that the 

employee's conduct protected by § 7 was a substantial or a 

motivating factor in the discharge.'" Good Samaritan Med. Ctr., 

858 F.3d at 631 (quoting Transp. Mgmt., 462 U.S. at 399-400). If 

the General Counsel makes this showing, the employer may

nonetheless avoid liability by rebutting the prima facie case or 

by proving that the employer would have discharged the employee, 

even absent the protected conduct, based on other, unprotected 

conduct. Id. (citing Transp. Mgmt., 462 U.S. at 400).

However, Wright Line is inapplicable where an employee's 

discharge is based upon a single act. See Five Star Transp., Inc., 

349 N.L.R.B. 42, 46 n.8 (2007) (holding that where employer made 

hiring decisions based on letters to school committee, "the only 

issue presented is whether the letters constituted protected 

conduct"); Am. Steel Erectors, Inc., 339 N.L.R.B. 1315, 1316 (2003) 

(explaining that "Wright Line analysis [is] unnecessary in [a] 

single-motive case"); Phx. Transit Sys., 337 N.L.R.B. 510, 510 
- 16 -

(2002) (holding Wright Line inapplicable where employer discharged 

employee "because of the articles he wrote in the union 

newsletter," which "constituted protected concerted activity"); 

Nor-Cal Beverage Co., 330 N.L.R.B. 610, 612 (2000) (holding that 

"Respondent can rely on no independent motive" where the reason 

for discharge was a protected activity). Here, MCMH decided to 

discharge Young solely because of the letter, so Wright Line does 

not apply. 

MCMH objects to the conclusion that Young was discharged 

because of her concerted activity, as it contends that she was not 

fired for the statements in her letter that involve the physician 

contracts, nurse staffing, or the union. Instead of sorting the 

statements in the letter into two baskets (protected and 

unprotected) and using the Wright Line test to determine which 

basket contained the true impetus for termination, the ALJ quite 

pragmatically treated Young's letter as a single act. As the ALJ 

concluded, the statements the hospital points to -- "those about 

management being out-of-touch and the chairwoman's allegiance to 

management" -- are directly tied to her ultimate argument for more 

staffing. Me. Coast Reg'l Health Facilities, 369 N.L.R.B. No. 51, 

slip op. at *16 n.14 (Mar. 30, 2020). Therefore, even under a 

piecemeal approach in which the letter is parsed sentence by 

sentence, all of the statements the hospital has identified are 

concerted activity. Moreover, to the extent that MCMH means to 
- 17 -

contend that Young was terminated for damaging its reputation as 

opposed to for opining on the labor dispute, the ALJ concluded 

that the negative nature of Young's letter was "part of the res 

gestae of her protected protest about working conditions," and so 

under Board precedent a mixed-motive inquiry does not apply as 

that aspect of the letter cannot be separated out and serve as an 

independent legal basis for her termination. Id.

Aware of this flaw in its argument, MCMH contends that 

the res gestae standard has been "overruled and invalidated." It

pins its hopes on the recent General Motors decision, in which the 

Board extended the Wright Line mixed-motive test to cases in which 

an employee engages in a single instance of abusive behavior that, 

apart from its abusive nature, would be protected under Section 7. 

See Gen. Motors, 369 N.L.R.B. No. 127, at *1-2. But to no avail. 

In General Motors, the Board cabined its holding to cases involving 

abusive conduct, specifically exempting mere disparagement or 

disloyalty. See id. at *9 n.16.

Here, Young expressed the following criticisms of MCMH's 

management: "[The] MCMH Board Chairwoman['s] . . . statement . . . 

sounds like complete allegiance to EMHS. What happened to loyalty 

to our local hospital, staff and the patients and communities that 

have benefited by the consistent, dedicated, experienced care 

given by trusted local doctors?" "Hospital management who work 

out of their offices and have meeting after meeting and who are 
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not working where patients are being cared for, but who then make 

decisions about staffing levels should be listening to those who 

are actually caring for patients." "[M]anagement keeps going to 

their meetings or are in their offices in their administrative 

building, far from the doctors and nurses and other staff who are 

working [in medical units of the hospital]." These measured 

critiques were not abusive, a term the Board has reserved for truly 

outrageous workplace conduct. See, e.g., id. at *1 (describing 

abusive conduct by an employee who had "unleashed a barrage of 

profane ad hominem attacks" and another employee who "shouted 

racial slurs while picketing" (footnotes omitted)). Thus, General 

Motors does not apply and provides no basis for remand.

Accordingly, the question presented was whether Young 

surrendered her Section 7 protection by including disparaging and 

false statements about hospital management and patient safety in 

her letter. In a thorough analysis, the ALJ concluded that the 

letter was not so inflammatory as to forfeit that statutory cloak 

of protection. For the following reasons, we affirm that 

conclusion.

"Where concerted activity entails communications with a 

third party . . . , such activity is protected if it meets a twopart test: (1) the communication indicates to the third party that 

it is related to an ongoing dispute between an employer and 

employees; and (2) the communication itself is not so disloyal, 
- 19 -

reckless or maliciously untrue as to lose the Act's protection." 

Five Star Transp., 522 F.3d at 52 (quotations and citations 

omitted); see also NLRB v. Local Union No. 1229, Int'l Brotherhood 

of Elec. Workers (Jefferson Standard), 346 U.S. 464, 471 (1953). 

"[T]he critical question" is whether the "communications 

reasonably targeted the employer's labor practices, or 

indefensibly disparaged the quality of the employer's product or 

services." MikLin Enters., Inc. v. NLRB, 861 F.3d 812, 822 (8th 

Cir. 2017) (en banc).

Young's letter focused on ongoing disputes between MCMH 

management and staff, thus satisfying the first prong of Five Star 

Transportation. As for the second prong, the arguably disparaging 

statements were assertions that administrators gave "complete 

allegiance" to EMHS, spent too much time in meetings, and 

wrongfully disregarded input from nurses and other patient-facing 

staff. Rather than resorting to panic-inducing rhetoric, Young 

calmly articulated her strong disapproval of management's staffing 

decisions. Compared to statements that have lost protection due 

to their derogatory nature, these criticisms were circumspect. 

See, e.g., St. Luke's Episcopal-Presbyterian Hosps., Inc. v. NLRB, 

268 F.3d 575, 581 (8th Cir. 2001) (holding unprotected "materially 

false and misleading" statement that hospital was "'jeopardizing 

the health of mothers and babies' by depleting its staff of labor 

and delivery [nurses], reducing the effectiveness of the remaining 
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[nurses] by increasing their duties, and providing less qualified 

replacements"); Coca Cola Bottling Works, Inc., 186 N.L.R.B. 1050, 

1054 (1970) ("leaflet [distributed by striking Coca Cola 

employees] was [designed] to create fear in the public's mind that 

drinking Coca Cola would be harmful to the health of the purchaser 

because of the presence of foreign objects such as roaches and 

mice").

Furthermore, Young's letter did not impermissibly stray 

from her labor concerns when she posited that understaffing would 

diminish patient safety, as "patient welfare and working 

conditions are often inextricably intertwined" in the health care 

field. Valley Hosp. Med. Ctr., Inc., 351 N.L.R.B. 1250, 1252 

(2007) (citing Brockton Hosp., 333 N.L.R.B. 1367, 1374-75 (2001),

enforced in relevant part, 294 F.3d 100 (D.C. Cir. 2002);

Misericordia Hosp. Med. Ctr., 246 N.L.R.B. 351, 356 (1979),

enforced, 623 F.2d 808 (2d Cir. 1980)). Lastly, the only clear 

falsity in the letter was Young's statement that the union had 

followed proper grievance procedures -- which it had not -- prior 

to presenting its petition to management. However, Young made 

this error in reasonable reliance on the union steward's statement 

in the Ellsworth American. In sum, Young's criticisms were not so 

disloyal or disparaging as to shed their Section 7 armor.
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c. Anti-Union Motive and Discouragement

We next turn to MCMH's criticisms of the findings 

underpinning the Section 8(a)(3) violation. Under that provision, 

an employer may not "encourage or discourage membership in any 

labor organization" "by discriminat[ing] in regard to hire or 

tenure of employment." 29 U.S.C. § 158(a)(3). This inquiry "turns 

on the employer's primary motivation." McGaw of P.R., 135 F.3d 

at 8 (citing Transp. Mgmt., 462 U.S. at 397–403). 

Unlike Section 8(a)(1), which protects concerted 

activities even absent any connection to an extant or potential 

union, Section 8(a)(3) protects only union activities. See Gen.

Motors, 369 N.L.R.B. No. 127, at *1 (noting that "discipline based 

on . . . Section 7 activity violates Section 8(a)(3) and (1) (or, 

when no union activity is involved, just Section 8(a)(1))"). Here, 

the ALJ justifiably concluded that Young's letter constituted

union activity protected under Section 8(a)(3) -- in addition to 

concerted activity protected under Section 8(a)(1) -- because the 

letter lent support to the nurses' union in its labor dispute. 

See Pride Ambulance Co., 356 N.L.R.B. 1023, 1023, 1040 (2011) 

(holding that employer violated Section 8(a)(3) by terminating 

non-union employee who made "common cause with the striking 

employees" by refusing to replace striker); Beth Israel Med. Ctr., 

292 N.L.R.B. 497, 498 (1989) (finding non-union employee's refusal 

to cross picket line to be protected union activity); Signal Oil 
- 22 -

& Gas Co., 160 N.L.R.B. 644, 645, 649 (1966) (holding that employer 

violated Section 8(a)(3) because termination of non-union employee 

for "expression of support for the proposed union activity of his 

fellow employees . . . would tend to discourage membership in a 

labor organization"), enforced, 390 F.2d 338 (9th Cir. 1968).

Nonetheless, MCMH argues that the Section 8(a)(3) 

violation must be reversed because the hospital neither acted with 

a forbidden motive nor discouraged union membership.

i. Motive

In NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), 

the Supreme Court held that a violation of Section 8(a)(3) requires 

a finding of "improper motive." Id. at 33. "If the employer's 

conduct is 'inherently destructive' of union members' 

rights . . . , a violation may be proved without evidence of 

improper motive if the employer fails to prove that its actions 

can be justified as 'something different than they appear on their 

face.'" Southcoast Hosps. Grp., Inc. v. NLRB, 846 F.3d 448, 454

(1st Cir. 2017) (quoting Great Dane, 388 U.S. at 33). "Even if a 

business justification has been proved, an inference of improper 

motive may be drawn from the inherently destructive conduct 

itself . . . ." Id. (quoting Great Dane, 388 U.S. at 33–34). 

Where the effect of the employer's conduct is instead 

"comparatively slight," and the employer proves that "the 

challenged conduct serves 'legitimate and substantial' business 
- 23 -

interests," the General Counsel has the burden of proving a 

discriminatory motive via direct evidence. Id. (quoting Great 

Dane, 388 U.S. at 34).4 

MCMH argues that, because the Board did not explicitly 

find the discharge of Young to be inherently destructive, the 

discharge must instead have been comparatively slight. 

Furthermore, MCMH contends that it introduced evidence of 

legitimate business reasons for the firing, and that the General 

Counsel was therefore required to submit direct evidence of 

discriminatory motive, a requirement it failed to meet. This 

argument is a nonstarter.

Although the Board did not use the phrase "inherently 

destructive," it did effectively conclude that MCMH's disciplinary 

actions were just that. The Board held that "Young was discharged 

for engaging in protected . . . union activity," Me. Coast Reg'l 

Health Facilities, 369 N.L.R.B. No. 51, slip op. at *1, and we see 

no basis for concluding that finding was clearly erroneous. 

Because Young's termination was in direct response to her protected 

union activity, it was "inherently destructive." See Kaiser Eng'rs

4 The inquiry under Great Dane (whether to infer anti-union 

motive based on the presence or absence of legitimate business 

interests for discharge) has the potential to blur with the inquiry 

under Wright Line (whether the termination was primarily motivated 

by protected or unprotected conduct) to the point of 

indistinguishability. 
- 24 -

v. NLRB, 538 F.2d 1379, 1386 (9th Cir. 1976) ("Where discriminatory 

conduct is directly related to protected activity . . . , such 

conduct is inherently destructive . . . .") (citing Signal Oil & 

Gas Co. v. NLRB, 390 F.2d 338, 343, 344 (9th Cir. 1968)); see also

Kan. City Power & Light Co. v. NLRB, 641 F.2d 553, 559 (8th Cir. 

1981) ("[A]ctions creating visible and continuing obstacles to the 

future exercise of employee rights are inherently destructive." 

(quotations and citation omitted)); NLRB v. Borden, Inc., Borden

Chem. Div., 600 F.2d 313, 321 (1st Cir. 1979) (noting that whether 

conduct is inherently destructive can turn on "whether the conduct 

discriminated solely upon the basis of participation in strikes or 

union activity"); Portland Willamette Co. v. NLRB, 534 F.2d 1331, 

1334 (9th Cir. 1976), as amended (June 14, 1976) ("Examples of 

inherently destructive activity are permanent discharge for 

participation in union activities . . . ."). Therefore, MCMH's 

motive-based arguments provide no reason to overturn the 

Section 8(a)(3) violation.

ii. Actual Discouragement

Next, MCMH claims that the Section 8(a)(3) violation is 

infirm because there was no direct evidence that Young's firing 

discouraged membership in a union and because the Board failed to 

make any findings regarding discouragement. A violation of 

Section 8(a)(3) "requires specifically that the Board find a 

discrimination and a resulting discouragement of union 
- 25 -

membership." See Great Dane, 388 U.S. at 32 (citing Am. Ship Bldg.

Co. v. NLRB, 380 U.S. 300, 311 (1965)). However, direct proof "is 

not required where encouragement or discouragement can be 

reasonably inferred from the nature of the discrimination." Radio 

Officers' Union of Com. Telegraphers Union v. NLRB, 347 U.S. 17, 

51 (1954); see also Great Dane, 388 U.S. at 32 (inferring 

discouragement where employer gave certain benefits to "employees 

who are distinguishable only by their participation in protected 

concerted activity"). Moreover, "[d]iscouraging membership in a 

labor organization 'includes discouraging participation in 

concerted activities'" related to a union. Great Dane, 388 U.S. 

at 32 (quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 233 

(1963)).

As discussed, MCMH decided to discharge Young based 

solely on her protected letter writing activity. It seems obvious 

to us that firing an employee for participation in protected 

activities would tend to discourage participation in those 

activities. Accordingly, discouragement can be easily inferred, 

and there was no need for direct evidence.

Moreover, given the circumstances, the lack of explicit 

discussion of discouragement does not invalidate the Board's 

decision. "The Supreme Court has held, time and again, that a 

violation of § 8(a)(3) normally turns on an employer's antiunion 

purpose or motive." 800 River Rd. Operating Co. v. NLRB, 784 F.3d 
- 26 -

902, 908 (3d Cir. 2015); see also Radio Officers' Union, 347 U.S. 

at 44 ("That Congress intended the employer's purpose in

discriminating to be controlling is clear."). Unsurprisingly, 

then, actual discouragement often goes unmentioned in the Board's 

opinions. See, e.g., Rocky Mountain Eye Ctr., 363 N.L.R.B. No. 

34, 2015 WL 6735641, at *1-3 (Nov. 3, 2015) (holding that employer 

violated Section 8(a)(3), without discussing discouragement, 

"because the very conduct for which [employee] was terminated was 

union organizing activity protected by the Act"); Nor-Cal

Beverage, 330 N.L.R.B. at 611-12 (concluding that Section 8(a)(3) 

was violated, without mention of discouragement, where employee 

was disciplined for protected activity of criticizing fellow 

employees who expressed interest in breaking picket line).

Here, despite the lack of the word "discouragement," the 

Board's opinion is replete with statements suggesting a concern 

for discouragement. First, the ALJ stated that "[i]f employees 

lost their NLRA right to protest working conditions every time an 

employer could identify a minor misstatement of the type shown 

here, it would render that right a nullity in a large segment of 

instances and would profoundly chill employees from exercising 

their Section 7 rights at all." Me. Coast Reg'l Health Facilities, 

369 N.L.R.B. No. 51, slip op. at *15 (Mar. 30, 2020). Second, the 

Board's remedy required the Employer to "[a]dvise [its] employees 

that the original media policy w[ould] not be used to discipline 
- 27 -

them for communicating with the news media . . . regarding 

employees' terms and conditions of employment or union activity." 

Id. at *4. Similarly, the Board required MCMH to post notices 

stating that it would not "discharge, discipline, or otherwise 

discriminate against employees for engaging in protected concerted 

activities and/or for supporting [the nurses' union,]" and that it 

would "offer Karen-Jo Young full reinstatement" and "[m]ake [her] 

whole for any loss of earnings and other benefits." Id. at *5.

The implication is clear: absent a remedy, Young's 

firing would discourage other employees from engaging in protected 

activities. See Great Dane, 388 U.S. at 32 (concluding there was 

"no doubt" the discouragement requirement was met where the 

employer's conduct "surely may have [had] a discouraging effect on 

either present or future concerted activity"). We therefore 

conclude that the Board's determination that MCMH violated 

Section 8(a)(3) is not spoiled by the lack of an explicit finding 

of discouragement.

2. Scope of the Remedy

Based on these violations, the Board ordered MCMH to 

post notices at every EMHS facility where its original media policy 

was disseminated, including eight medical facilities that appear 

to be corporate entities separate from MCMH. MCMH now argues that 

EMHS was not a party to the proceedings, and that the Board 
- 28 -

therefore exceeded its authority by compelling MCMH to take actions 

at those locations. We agree.

"The Board has 'the primary responsibility and broad 

discretion to devise remedies that effectuate the policies of the 

Act,' and that discretion is 'subject only to limited judicial 

review.'" Visiting Nurse Servs. of W. Mass., Inc. v. NLRB, 177 

F.3d 52, 61–62 (1st Cir. 1999) (quoting Sure-Tan, Inc. v. NLRB,

467 U.S. 883, 888-89 (1984)). However, "the relief which the

statute empowers the Board to grant is to be adapted to the

situation which calls for redress." Sure-Tan, 467 U.S. at 900 

(quoting NLRB v. MacKay Radio & Tel. Co., 304 U.S. 333, 348

(1938)). Thus, a remedy ordered by the Board "should stand unless 

it can be shown that [it] is a patent attempt to achieve ends other 

than those which can fairly be said to effectuate the policies of 

the Act." Pegasus Broad. of San Juan v. NLRB, 82 F.3d 511, 513 

(1st Cir. 1996) (alteration in original) (quoting Va. Elec. & Power

Co. v. NLRB, 319 U.S. 533, 540 (1943)). Here, the relevant policy 

comes from 29 U.S.C. § 160(b), which provides that the General 

Counsel must "issue and cause to be served upon [the party] a 

complaint stating the charges . . . and containing a notice of 

hearing before the Board."

The General Counsel initiated the proceeding below by 

serving MCMH with a complaint in which the respondent was named 

Maine Coast Regional Health Facilities, d/b/a Maine Coast Memorial 
- 29 -

Hospital. Near the end of trial, the General Counsel moved to 

amend the complaint "to correctly reflect the fact that [EMHS] is 

certainly the Respondent," stating that the revision was intended 

to allow the Board to order repudiation notices to be posted at 

locations other than MCMH. MCMH initially objected, but, after an 

off-record discussion, consented only to amending MCMH's name to 

its current iteration: Maine Coast Regional Health Facilities,

d/b/a Maine Coast Memorial Hospital, the sole member of which is 

Eastern Maine Healthcare Systems. As the ALJ noted, that change 

was not what the General Counsel initially sought.

The Board contends that this amendment added EMHS as a 

party and, in the alternative, that MCMH's consent to the amendment 

constituted a waiver of its current objection.5 The revision, 

however, simply retained MCMH as the sole respondent, adding only

the corporate relationship between MCMH and EMHS. The amendment 

did not change the fact that EMHS was never named as the respondent 

in a complaint, served with a complaint, or given a hearing.6 

5 The Board makes no argument that MCMH and EMHS can be 

treated as one entity under the single employer doctrine. See 

generally NLRB v. Hosp. San Rafael, Inc., 42 F.3d 45, 50 (1st Cir. 

1994).

6 The Board notes that the individual who accepted service 

on behalf of MCMH and many of those present at the trial were 

employees of EMHS. This is inconsequential because those 

individuals were acting as representatives of MCMH, the sole entity 

charged in the complaint. While EMHS was clearly aware of the 
- 30 -

Where a parent and subsidiary are properly maintained as separate 

corporate entities, jurisdiction over the subsidiary does not 

necessarily generate jurisdiction over the parent. See de Walker

v. Pueblo Int'l, Inc., 569 F.2d 1169, 1173 (1st Cir. 1978) (citing 

Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 335, 336-37 

(1925)). Thus, the amendment provides no basis for concluding 

that EMHS was joined as a party or that MCMH consented to extending 

the remedy beyond its corporate borders. Allowing the Board to 

indirectly bind EMHS through an order naming MCMH as its subject 

would contravene the policy that the Board may exert its authority 

only over parties that have been afforded notice and hearing. See

29 U.S.C. § 160(b).7 We conclude that no remedy regarding the nonMCMH locations would be appropriate, so a remand would be 

pointless. See Wang Theatre, 981 F.3d at 117 (citing NLRB v. 

Wyman-Gordon Co., 394 U.S. 759, 766-67 n.6 (1969)) (vacating 

Board's orders without further proceedings where outcome of remand 

was preordained); Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 147 (1st 

Cir. 1981) (citing NLRB v. Savin Bus. Machs. Corp., 649 F.2d 89, 

proceedings, EMHS was never given notice that it was being charged 

with violations of labor law.

7 The Board argues that MCMH lacks standing to raise this 

argument on behalf of EMHS. As noted, though, the Board's order 

requires MCMH itself to post notices at the other locations, an 

unreasonable task given the Board's lack of authority over EMHS. 

Therefore, MCMH has standing to challenge the scope of the remedy.
- 31 -

93 (1st Cir. 1981)) (enforcing order in part; striking one 

provision of order without remand).

IV. Conclusion

We grant the Board's application for enforcement of its 

order, striking those portions of the order requiring MCMH to post 

repudiation notices at facilities operated by other corporate 

entities.

So ordered.