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 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.

- 3 - 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

- 4 - 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.

- 5 - 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

- 6 - concerted activity protected by Section 7 of the National Labor

Relations Act ("NLRA" or "Act"),

, as well as union

activity protected by Section 8(a)(3) of the Act,

§ 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.

- 7 - arbitrary or capricious reasoning." Boch Imps., Inc. v. NLRB,

(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."

"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,

(1st Cir. 1997) (quoting Universal Camera Corp. v.

NLRB,

(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.,

(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.,

(1975).

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

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

Inc.,

(1st Cir. 2020) (quoting Good Samaritan

Med. Ctr. v. NLRB,

(1st Cir. 2017)).

- 8 - On matters of fact, the Board's findings are conclusive

"if supported by substantial evidence on the record considered as

a whole."

(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,

(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,

(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 self-

organization, 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."

. 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.

§ 158(a)(1).

Additionally, under Section 8(a)(3), it is an unfair labor practice

- 9 - 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.,

(1st Cir. 1998) (quoting

NLRB v. City Disposal Sys. Inc.,

(1984)).

The Board's prevailing test for concerted activity is

set out in Meyers Industries, Inc.,

, 497 (1984)

("Meyers I"), and Meyers Industries, Inc.,

, 885

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

view, "generally, an activity is carried out in a 'concerted'

- 10 - manner for purposes of § 7 if it is 'engaged in with or on the

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

(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.,

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

The history behind the Meyers decisions is worth noting.

In Alleluia Cushion Co.,

(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.

.

- 11 - 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,

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

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

Transp.,

(affirming finding of concerted activity

where bus drivers, following meeting with union, individually sent

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

Co.,

, 759, 765 (2000) (finding concerted activity

where a group of employees criticized employer in magazine

interview); see also Mount Desert Island Hosp.,

,

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

- 12 - 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.,

; Meyers I, 268 N.L.R.B. at 496 (providing

that outward manifestations of support can establish that an issue

Due to the hearsay contained within the newspaper articles, 2

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.

- 13 - 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.,

(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,"

, 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.

- 14 - of Wright Line, Inc.,

(1980), enforced on other

grounds,

(1st Cir. 1981), approved in NLRB v. Transp.

Mgmt. Corp.,

(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,

, 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.,

(quoting Transp. Mgmt.,

). 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.

(citing Transp. Mgmt.,

).

However, Wright Line is inapplicable where an employee's

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

, 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.,

, 1316 (2003)

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

single-motive case"); Phx. Transit Sys.,

, 510

- 15 - (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.,

, 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

- 16 - 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.

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

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

- 17 - 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.,

(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 two-

part 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,

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

Five Star Transp.,

(quotations and citations

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

of Elec. Workers (Jefferson Standard),

(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,

(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,

(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

- 19 - [nurses] by increasing their duties, and providing less qualified

replacements"); Coca Cola Bottling Works, Inc.,

,

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.,

, 1252

(2007) (citing Brockton Hosp.,

, 1374-75 (2001),

enforced in relevant part,

(D.C. Cir. 2002);

Misericordia Hosp. Med. Ctr.,

, 356 (1979),

enforced,

(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.

- 20 - 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."

(a)(3). This inquiry "turns

on the employer's primary motivation." McGaw of P.R.,

(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.,

, 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.,

, 498 (1989) (finding non-union employee's refusal

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

- 21 - & Gas Co.,

, 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,

(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.,

(1967),

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

a finding of "improper motive."

. "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,

(1st Cir. 2017) (quoting Great Dane,

). "Even if a

business justification has been proved, an inference of improper

motive may be drawn from the inherently destructive conduct

itself . . . ."

(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

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

discriminatory motive via direct evidence.

(quoting Great

Dane,

).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.

- 23 - v. NLRB,

(9th Cir. 1976) ("Where discriminatory

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

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

Gas Co. v. NLRB,

(9th Cir. 1968)); see also

Kan. City Power & Light Co. v. NLRB,

(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.,

(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,

(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

- 24 - membership." See Great Dane,

(citing Am. Ship Bldg.

Co. v. NLRB,

(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,

(1954); see also Great Dane,

(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,

(quoting NLRB v. Erie Resistor Corp.,

(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

- 25 - 902, 908 (3d Cir. 2015); see also Radio Officers' Union,

("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,

, 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

- 26 - 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,

(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

- 27 - 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,

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

(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,

(quoting NLRB v. MacKay Radio & Tel. Co.,

(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,

, 513

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

Co. v. NLRB,

(1943)). Here, the relevant policy

comes from

(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

- 28 - 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.,

, 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

- 29 - 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.,

(1st Cir. 1978) (citing

Cannon Mfg. Co. v. Cudahy Packing Co.,

(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

(b).7 We conclude that no remedy regarding the non-

MCMH locations would be appropriate, so a remand would be

pointless. See Wang Theatre,

(citing NLRB v.

Wyman-Gordon Co.,

, 766-67 n.6 (1969)) (vacating

Board's orders without further proceedings where outcome of remand

was preordained); Wyman-Gordon Co. v. NLRB,

(1st

Cir. 1981) (citing NLRB v. Savin Bus. Machs. Corp.,

,

proceedings, EMHS was never given notice that it was being charged with violations of labor law. 7The 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.

- 30 - 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.

- 31 -